Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1128)

SURE PROJECTS AUSTRALIA (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION)SUBCONTRACTORS WATERPROOFING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the SURE PROJECTS AUSTRALIA (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SURE PROJECTS AUSTRALIA (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing 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 the case were SURE Projects Australia (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), represented by its Subcontractors Waterproofing Enterprise Agreement 2020-2023. The dispute centred around the application for the approval of the aforementioned enterprise agreement, which was lodged with the Fair Work Commission. The court was tasked with determining whether the agreement complied with the requirements of the Fair Work Act 2009.

The central legal issues the court had to address were whether the enterprise agreement met the necessary conditions for approval, including its compliance with the procedural requirements and the substantive provisions of the Fair Work Act. The court also needed to consider whether the agreement adequately provided for the minimum entitlements of employees, including wages, hours of work, and other conditions of employment, as stipulated by the Act. Furthermore, the court examined whether the agreement had been fairly and genuinely negotiated between the employer and the union.

The court meticulously reviewed the provisions of the Fair Work Act and the specifics of the enterprise agreement. It found that the agreement was procedurally sound and met all the necessary criteria for approval. The court concluded that the agreement fairly and genuinely reflected the negotiation process between the employer and the union. Moreover, the court confirmed that the agreement adequately provided for the minimum entitlements of employees, aligning with the requirements of the Fair Work Act. Therefore, the court approved the enterprise agreement.

In summary, the Fair Work Commission approved the Subcontractors Waterproofing Enterprise Agreement 2020-2023 between SURE Projects Australia (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The court determined that the agreement was properly negotiated, met the necessary procedural requirements, and provided for the minimum entitlements of employees as required by 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