Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/689)

CORE FOUNDATIONS PTY LTD AS TRUSTEE FOR CD SIMON TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PILING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 MARCH 2022

Application for approval of the CORE FOUNDATIONS PTY LTD AS TRUSTEE FOR CD SIMON TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CORE FOUNDATIONS PTY LTD AS TRUSTEE FOR CD SIMON TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Piling 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 30 March 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 case before the Fair Work Commission involved an application for the approval of the CORE FOUNDATIONS PTY LTD AS TRUSTEE FOR CD SIMON TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023. The application was brought by the union against the employer. The agreement was being sought to be made a registered agreement under the Fair Work Act 2009. The nature of the dispute was centred on whether the agreement complied with the requirements of the Act, particularly in relation to the procedural fairness of the bargaining process and the substantive fairness of the terms.

The legal issues that the court was required to decide involved assessing whether the agreement was made in accordance with the requirements of the Fair Work Act 2009. This included whether the agreement was made through genuine and good faith bargaining, whether it covered a relevant group of employees, and whether it contained the necessary minimum terms and conditions. The court also had to consider whether the agreement met the threshold criteria for registration, including whether it was in the public interest to register it.

The court found that the agreement was made through genuine and good faith bargaining, as the parties had engaged in a meaningful negotiation process. The court also found that the agreement covered a relevant group of employees and contained the necessary minimum terms and conditions. In relation to the threshold criteria, the court found that the agreement was in the public interest to be registered, as it provided for a fair and reasonable outcome for both parties and the broader community. The court approved the agreement, making it a registered agreement under the Act.

The final orders of the court included the registration of the CORE FOUNDATIONS PTY LTD AS TRUSTEE FOR CD SIMON TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Piling Enterprise Agreement 2020-2023 as a registered agreement under the Fair Work Act 2009. The agreement was to be registered from the date of the decision, and the parties were bound by its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established