Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/863)

TERAGROUP CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 APRIL 2022

Application for approval of the Teragroup Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the Teragroup Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 12 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 the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval for the Subcontractors Concrete Placement Enterprise Agreement 2020-2023 with Teragroup Constructions Pty Ltd. The dispute involved the negotiation and terms of the agreement, which was to cover subcontractors in the concrete placement industry. The Commission was tasked with ensuring that the agreement complied with the Fair Work Act 2009 and met the criteria for a "single enterprise agreement."

The central legal issues revolved around whether the agreement represented a "single enterprise" as required by the Fair Work Act. The Union argued that the agreement covered a cohesive group of subcontractors within the concrete placement industry, which could be considered a single enterprise. The company, on the other hand, contested that the agreement failed to meet the criteria for a single enterprise as it encompassed a diverse range of subcontractors with varying levels of bargaining power and industry practices.

The Commission deliberated on the concept of a "single enterprise" and assessed whether the agreement effectively covered a cohesive group of employers and employees. It found that the agreement did indeed represent a single enterprise, given the commonality of industry practices, bargaining power, and the nature of work performed by the subcontractors involved. The Commission concluded that the agreement complied with the requirements of the Fair Work Act and approved the Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

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