Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/794)

YARRA CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 MARCH 2022

Application for approval of the YARRA CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the YARRA CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 6 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 Fair Work Commission heard an application for the approval of the YARRA CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The application was brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) against Yarra Constructions Pty Ltd, an employer in the construction industry. The dispute centred on whether the proposed enterprise agreement, which aimed to regulate the terms and conditions of employment for carpenters and joiners employed by Yarra Constructions, met the requirements of the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement contained all the mandated terms as required by the Act and whether it was fair and reasonable in all its aspects. Specifically, the Commission had to assess if the agreement provided for appropriate minimum rates of pay, allowances, penalties, leave entitlements, and other conditions of employment as stipulated by the Act. Furthermore, the Commission needed to consider whether the agreement was free from any unfair discrimination and was not likely to have a detrimental effect on the bargaining power of either party.

The Commission carefully examined the provisions of the proposed agreement and found that it included all the mandated terms. It was noted that the agreement provided for fair and reasonable minimum rates of pay and other employment conditions. The Commission also determined that the agreement was free from any unfair discrimination and would not negatively impact the bargaining power of either party. As a result, the Commission approved the enterprise agreement, finding it to be in compliance with the Fair Work Act 2009.

The Fair Work Commission approved the YARRA CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, effective from 1 January 2020. The agreement now governs the employment terms and conditions for carpenters and joiners working for Yarra Constructions, ensuring a fair and reasonable framework for their working conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established