Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1525)

COMPLETE ASPHALT PAVING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ASPHALT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 MAY 2022

Application for approval of the COMPLETE ASPHALT PAVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the COMPLETE ASPHALT PAVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 June 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the COMPLETE ASPHALT PAVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023. The Fair Work Commission was tasked with determining whether the proposed agreement met the legal standards for approval under the Fair Work Act 2009. The applicants argued that the agreement was fair and reasonable, while the respondent raised concerns about specific provisions.

The primary legal issues the Commission had to decide were whether the agreement complied with the Fair Work Act's requirements and if it was appropriate to approve the agreement despite certain reservations. The Commission examined whether the agreement contained all the mandated terms, including minimum wage rates, penalty rates, and other employment conditions. Furthermore, the Commission assessed whether the agreement met the "better off overall test" and whether it provided a fair and reasonable outcome for the employees.

In its decision, the Fair Work Commission found that the agreement was largely compliant with the statutory requirements. The Commission noted that while there were some provisions that could be improved, the overall agreement was fair and reasonable. The Commission concluded that the agreement provided a fair and reasonable outcome for the employees, meeting the "better off overall test." Consequently, the Commission approved the proposed agreement, subject to certain modifications to address the minor issues identified.

The Fair Work Commission ordered the approval of the COMPLETE ASPHALT PAVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asphalt Enterprise Agreement 2020-2023, with the modifications made to address the minor concerns raised during the hearing. The approved agreement was to be registered and would come into effect on the date specified in the application.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established