Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/670)

INGLIS CONSTRUCTION PTY LTD AS TRUSTEE FOR THE RT & CJ INGLIS FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023

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

Application for approval of the INGLIS CONSTRUCTION PTY LTD AS TRUSTEE FOR THE RT & CJ INGLIS FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the INGLIS CONSTRUCTION PTY LTD AS TRUSTEE FOR THE RT & CJ INGLIS FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Inglis Construction Pty Ltd as trustee for the RT & CJ Inglis Family Trust applied to the Fair Work Commission for approval of the Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The application was brought under the Fair Work Act 2009, which allows for the registration of enterprise agreements that have been negotiated in good faith and meet the "better off overall test". The agreement in question was negotiated between the union and the employer, and the CFMEU sought to have it registered as a registered agreement under the Act.

The legal issues before the Commission were whether the agreement had been negotiated in good faith and whether it met the "better off overall test". The Commission considered the evidence presented by both parties and examined the terms of the agreement to determine whether it met the requirements of the Act. The Commission also considered the nature of the industry and the bargaining positions of the parties.

The Commission found that the agreement had been negotiated in good faith and met the "better off overall test". The Commission noted that the agreement provided for a range of benefits for employees, including increased wages and improved working conditions. The Commission also found that the agreement was consistent with the principles of the Fair Work Act and did not contain any provisions that were contrary to public policy. The Commission was satisfied that the agreement provided for a fair and reasonable outcome for both parties and approved the agreement as a registered agreement under the Act.

The Commission's decision was a significant victory for the CFMEU and its members in the construction industry. The agreement provides for improved wages and working conditions for employees in the concrete sawing and drilling sector, and the registration of the agreement under the Fair Work Act ensures that it will be enforceable in the courts. The decision also reinforces the importance of good faith bargaining and the role of the Fair Work Commission in facilitating the negotiation of enterprise agreements that are in the best interests of both employers and employees.

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