Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1134)

VSL AUSTRALIA PTY LTD T/AS VSL AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS POST-TENSIONING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the VSL AUSTRALIA PTY LTD T/As VSL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the VSL AUSTRALIA PTY LTD T/As VSL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning 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 matter were VSL Australia Pty Ltd, trading as VSL Australia, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). They sought the approval of a Subcontractors Post-Tensioning Enterprise Agreement for the period 2020 to 2023. The application was made to the Fair Work Commission, which was responsible for determining the appropriateness of the agreement. The central dispute centred around the compliance of the proposed agreement with the requirements of the Fair Work Act 2009. Specifically, the Commission needed to assess whether the agreement met the criteria for being a 'simplified agreement' and whether it complied with the general protections and minimum standards outlined in the Act.

The primary legal issue before the Commission was whether the proposed enterprise agreement could be classified as a simplified agreement, which would exempt it from certain procedural requirements under the Fair Work Act. Additionally, the Commission had to consider whether the agreement provided for terms and conditions that met the minimum standards and did not adversely affect the general protections available to employees under the Act. The Commission also needed to determine if the agreement had been made in good faith and whether it had been appropriately negotiated.

In reaching its decision, the Fair Work Commission carefully examined the provisions of the proposed agreement and the requirements set out in the Fair Work Act. The Commission found that the agreement satisfied the criteria for a simplified agreement and therefore was exempt from the need for a ballot of employees. Furthermore, the Commission determined that the agreement met the minimum standards and did not adversely affect the general protections of employees. The Commission was satisfied that the agreement had been made in good faith and that the negotiation process had been appropriate. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the VSL Australia Pty Ltd T/As VSL Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023, finding it to be a simplified agreement that met the requirements of the Fair Work Act.

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