Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/822)

UNIQUE FACADES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 April 2022

Application for approval of the UNIQUE FACADES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the UNIQUE FACADES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Aluminium & Glass 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 8 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 involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Unique Facades Pty Ltd for the approval of the Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023. The dispute centred on whether the terms of the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The Commission was tasked with examining the agreement to determine if it provided for fair and reasonable terms and conditions for the employees involved.

The primary legal issues before the Commission were whether the proposed agreement satisfied the requirements of section 232 of the Fair Work Act, which mandates that an enterprise agreement must include fair and reasonable terms and conditions. Specifically, the Commission had to assess if the agreement met the criteria of being free from coercion, discrimination, and undue influence, and whether it provided for the fair and reasonable terms of employment. Additionally, the Commission needed to consider if the agreement was in the best interest of the employees and if it complied with the provisions of the Fair Work Regulations.

The Fair Work Commission found that the proposed Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023 met the criteria for approval. The Commission noted that the agreement contained provisions that addressed the parties' rights and obligations, including those related to wages, hours of work, leave, and other employment conditions. The Commission was satisfied that the agreement was free from coercion, discrimination, and undue influence and provided for fair and reasonable terms and conditions. The Commission also considered the views and submissions of the parties and found that the agreement was in the best interest of the employees and complied with the relevant provisions of the Fair Work Act and Regulations.

The Fair Work Commission approved the Subcontractors Aluminium & Glass Enterprise Agreement 2020-2023, with the approval taking effect from the date of the decision. The agreement will now apply to the employees covered by the agreement, and both the CFMEU and Unique Facades Pty Ltd are bound by its terms. The Commission's decision provides clarity and certainty for the parties involved and ensures that the agreement meets the necessary legal requirements for approval under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established