Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/676)

STRESS FORCE POST TENSIONING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 MARCH 2022

Application for approval of the Stress Force Post Tensioning Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the Stress Force Post Tensioning Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning 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 29 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 parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Stress Force Post Tensioning Pty Ltd. The dispute pertained to the approval of the Subcontractors Post-Tensioning Enterprise Agreement 2020-2023. The case was heard in the Fair Work Commission, an Australian federal statutory tribunal. The CFMEU sought the tribunal's approval of the enterprise agreement, which had been negotiated between the union and the company. The company opposed the approval, raising objections on various grounds.

The legal issues before the Commission centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009. The company argued that the agreement failed to meet several statutory requirements, including the need for a genuine enterprise bargaining agreement, compliance with the Fair Work (Registered Organisations) Act 2009, and adherence to the general protections provisions. The union contended that the agreement was valid and should be approved. The Commission had to determine whether the agreement met the legal standards for approval.

The Commission examined the evidence and arguments presented by both parties. It found that the agreement was a genuine enterprise bargaining agreement, in compliance with the Fair Work Act. The agreement was also in line with the general protections provisions, and the company had not demonstrated that the union had acted in bad faith or that the agreement would have an adverse effect on the company's business. The Commission concluded that the agreement should be approved, as it met the legal requirements and provided fair and reasonable terms for the employees covered by the agreement.

The Commission approved the Subcontractors Post-Tensioning Enterprise Agreement 2020-2023, and the final orders were made accordingly. The agreement was to be registered with the Fair Work Commission, and it would come into effect on the date of registration. The company was required to provide a copy of the agreement to the Fair Work Ombudsman and to display a copy of the agreement in a prominent place at each workplace. The union was also required to inform its members of the agreement and its approval by the Commission. The agreement would remain in force until the end of its specified term, subject to any variations or terminations as provided for in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established