Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1009)

IMAGE STONE CONSTRUCTIONS PTY. LTD. AS TRUSTEE FOR NEWEY FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023

Building services
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 APRIL 2022

Application for approval of the IMAGE STONE CONSTRUCTIONS PTY. LTD. AS TRUSTEE FOR NEWEY FAMILY TRUST 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 IMAGE STONE CONSTRUCTIONS PTY. LTD. AS TRUSTEE FOR NEWEY FAMILY TRUST 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 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 matter, the applicant sought approval for the Subcontractors Tilelayers Enterprise Agreement 2020-2023, which was entered into between IMAGE STONE CONSTRUCTIONS PTY. LTD. AS TRUSTEE FOR NEWEY FAMILY TRUST and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute was heard in the Fair Work Commission, Australia's industrial relations tribunal. The primary concern was whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The court needed to determine if the agreement complied with the legislative provisions concerning enterprise agreements, including whether it was in the best interests of the employees covered by it. This involved assessing the fairness and benefits of the agreement, as well as whether it had been genuinely negotiated. The court also examined whether the agreement met the criteria for being a "single interest" enterprise agreement, as defined in the Act.

After reviewing the evidence and submissions, the court found that the agreement was fair and met the statutory requirements. It was concluded that the agreement was genuinely negotiated and that the process adhered to the necessary legal standards. Furthermore, the court determined that the agreement was in the best interests of the employees and that it complied with all relevant provisions of the Fair Work Act. Consequently, the application for approval was successful.

The Fair Work Commission approved the Subcontractors Tilelayers Enterprise Agreement 2020-2023, affirming that it was a genuine and fair agreement that met the legislative criteria. The agreement was thus authorised to take effect, providing a legally binding framework for the employment conditions of the employees covered by it.

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