Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/917)

CTA (VIC) PTY LTD T/AS CTA (VIC) 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, 8 APRIL 2022

Application for approval of the CTA (VIC) PTY LTD T/As CTA (VIC) 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 CTA (VIC) PTY LTD T/As CTA (VIC) 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 15 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 before the Fair Work Commission was an application for approval of an enterprise agreement between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and CTA (Vic) Pty Ltd T/A CTA (Vic). The agreement in question, the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023, was proposed to govern the terms and conditions of employment for employees within the specified enterprise. The application was brought forth to ensure that the agreement met the legal requirements under the Fair Work Act 2009. The dispute centred on whether the agreement complied with all legislative provisions, particularly focusing on the provisions that ensure the agreement is fair and beneficial to both parties involved.

The primary legal issues that the Fair Work Commission had to address included whether the agreement was in the best interests of the employees, whether it was procedurally fair, and if it contained all the mandated terms and conditions as required by the Fair Work Act. The Commission also had to consider whether the agreement met the test for being "better off overall" for the employees, taking into account all the benefits and detriments of the proposed terms. Additionally, the Commission examined whether the agreement was negotiated in good faith and if the process followed was fair and appropriate.

The Fair Work Commission found that the agreement satisfied the necessary criteria for approval. The Commission determined that the agreement was fair and beneficial to the employees, met the "better off overall" test, and contained all the mandated terms. The process of negotiation was deemed to have been conducted in good faith, and the agreement was found to be procedurally fair. Consequently, the Commission approved the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023, ensuring its legal validity and enforceability.

The final orders of the Fair Work Commission included the approval of the Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions for the specified period. The decision provided clarity and legal certainty for both the employer and the employees, allowing them to operate under the terms of the approved enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established