Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1125)

Corrib Formworx Pty Ltd and CFMEU ACT Enterprise Agreement 2019

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 25 MAY 2022

Application for approval of the Corrib Formworx Pty Ltd and CFMEU ACT Enterprise Agreement 2019.

An application has been made for approval of an enterprise agreement known as the Corrib Formworx Pty Ltd and CFMEU ACT Enterprise Agreement 2019 (Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The Commission raised a concern regarding a number of cross-referencing errors in the Agreement that appear to have arisen as a result of variations to the Building and Construction General On-site Award 2020 (Award). In order to rectify these issues, the Applicant sought that the Commission exercise its powers under s.586 of the Act to allow the correction of those errors. The Applicant lodged a copy of the Agreement containing the corrected Award clause numbers in the cross-references. I am satisfied that these corrections should be made, and that it is appropriate to do so. Pursuant to s.586 of the Act, I make the corrections.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A of this decision (Undertaking). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertaking and no objections were raised. I am satisfied that the effect of accepting the Undertaking is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertaking.

Subject to the Undertaking, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 June 2022. The nominal expiry date of the Agreement is 31 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Fair Work Act 2009, the Fair Work Commission was tasked with approving the Corrib Formworx Pty Ltd and CFMEU ACT Enterprise Agreement 2019. The Construction, Forestry, Maritime, Mining and Energy Union, acting as a bargaining representative, applied for the approval of this enterprise agreement, which pertains to the building, metal, and civil construction industries. The Agreement is a single enterprise agreement, and the Commission was required to consider various legal issues to determine whether the Agreement met the necessary criteria for approval under the Act.

The primary legal issues before the Commission were the cross-referencing errors that appeared in the Agreement, which seemed to have arisen due to variations in the Building and Construction General On-site Award 2020. The Applicant sought that the Commission exercise its powers under s.586 of the Act to allow the correction of these errors. The Commission needed to consider whether these corrections were necessary and whether the more beneficial entitlements of the National Employment Standards would prevail in the event of any inconsistency between the Agreement and the NES. Furthermore, the Commission was required to assess the Employer's written undertaking to determine whether accepting it would cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

Upon reviewing the materials before the Commission, Commissioner Matheson determined that the corrections to the cross-referencing errors should be made and that it was appropriate to do so. The Commissioner was satisfied that the more beneficial entitlements of the NES would prevail in the event of any inconsistency between the Agreement and the NES. Additionally, the Commission found that the effect of accepting the Employer's written undertaking was not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. Consequently, the Commission accepted the Undertaking and approved the Agreement. The Agreement will operate from 1 June 2022, with a nominal expiry date of 31 July 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established