Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1151)

BTC (AUST) PTY. LTD. AS TRUSTEE FOR BTC FAMILY TRUST T/As BARTUCCA TILING & CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 APRIL 2022

Application for approval of the BTC (AUST) PTY. LTD. AS TRUSTEE FOR BTC FAMILY TRUST T/As BARTUCCA TILING & CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the BTC (AUST) PTY. LTD. AS TRUSTEE FOR BTC FAMILY TRUST T/As BARTUCCA TILING & CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers 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.

I am satisfied that each of the requirements of ss.186, 187 and 188 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 3 May 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were BTC (AUST) PTY. LTD. AS TRUSTEE FOR BTC FAMILY TRUST T/As BARTUCCA TILING & CONSTRUCTION PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute arose over the approval of a new enterprise agreement between the parties, specifically the Subcontractors Tilelayers Enterprise Agreement 2020-2023. The matter was brought before the Fair Work Commission, a federal Australian court with jurisdiction over workplace relations and employment law.

The legal issues before the court revolved around whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly in terms of ensuring fairness and avoiding coercion. Key points of contention included the processes followed to achieve agreement, the nature of the consultation between the parties, and the fairness of the terms themselves. The court had to determine if the agreement was appropriately negotiated and if it provided for the proper operation of the workplace.

The court, in its reasoning, examined the negotiation process and found that the parties had engaged in genuine and meaningful negotiations. It was noted that the union had provided comprehensive feedback on the proposed agreement and that the employer had made efforts to address the union's concerns. The court also considered the economic context and the terms of the agreement, concluding that they were not harsh, unjust or unreasonable. Given these findings, the court approved the agreement, deeming it to be in compliance with the statutory requirements.

The final orders of the court approved the Subcontractors Tilelayers Enterprise Agreement 2020-2023 as a registered agreement, effective from the date of the decision. This meant that the terms of the agreement would govern the employment conditions for the relevant employees until the next scheduled negotiation period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established