Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1051)

GRAND SEAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the GRAND SEAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the GRAND SEAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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

In this case, Grand Seal Pty Ltd sought approval of an enterprise agreement from the Fair Work Commission, which was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was heard in the Federal Court of Australia, where the Commission's decision to approve the agreement was challenged by the CFMEU on the grounds that it did not comply with the requirements of the Fair Work Act 2009.

The primary legal issue before the court was whether the agreement met the statutory criteria for approval under the Fair Work Act. Specifically, the CFMEU argued that the agreement was not in the best interests of the employees because it failed to provide adequate protections for subcontractors and did not comply with certain provisions of the Act. The court was required to determine whether the Commission had correctly interpreted and applied the relevant legal standards in approving the agreement.

The court found that the Commission had not erred in its decision to approve the agreement. It held that the agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions of employment, including provisions for the protection of subcontractors. The court also found that the agreement complied with the statutory requirements of the Act. The Commission had considered all relevant factors and had not made any errors of law or misapplied the statutory provisions. Therefore, the court dismissed the CFMEU's appeal and affirmed the Commission's decision to approve the agreement.

The court's decision affirmed the importance of the Fair Work Act's objective of promoting harmonious, productive and cooperative workplace relations. It reinforced the principle that the Commission has broad discretion in determining whether an enterprise agreement is in the best interests of the employees, and that its decisions will be upheld unless there has been a clear error of law. The final orders of the court were that the appeal be dismissed and that the approval of the agreement by the Commission be affirmed.

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