Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1046)

SILVERSTONE FABRICATION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 APRIL 2022

Application for approval of the SILVERSTONE FABRICATION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SILVERSTONE FABRICATION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 26 April 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 matter involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Silverstone Fabrication Pty Ltd for the approval of the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission. The CFMEU sought approval of the agreement, which had been negotiated with Silverstone, to ensure it met the requirements under the Fair Work Act 2009. The legal issues the court needed to address were whether the agreement met the criteria for approval under the Act, including whether it provided for minimum terms and conditions, was free from prohibited content, and whether it had been negotiated in good faith.

The court examined the provisions of the agreement to determine if it complied with the Fair Work Act. It assessed whether the agreement contained all the prescribed minimum terms and conditions, ensuring no prohibited content was present. The court also considered the process of negotiation, evaluating if it was conducted in good faith and whether the parties had made a genuine attempt to reach an agreement. Upon review, the court found that the agreement met all the necessary criteria for approval. It was concluded that the agreement provided for the requisite minimum terms and conditions, was free from prohibited content, and had been negotiated in good faith.

Having determined that the agreement was compliant with the Fair Work Act, the court approved the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. This approval ensured that the agreement would be legally binding on Silverstone Fabrication Pty Ltd and the relevant employees covered by the agreement. The final orders of the court included the approval of the enterprise agreement, effective from the date of the decision.

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