Symal Contractors Pty Ltd Summary

[2023] FWCA 182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Symal Contractors Pty Ltd

(AG2022/5454)

SYMAL CONTRACTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CIVIL AND INFRASTRUCTURE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 JANUARY 2023

Application for approval of the SYMAL CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Civil and Infrastructure Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SYMAL CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Civil and Infrastructure 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 Symal Contractors Pty Ltd. 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 the Full Bench decision 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 26 January 2023. 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 was presented with an application for the approval of the Subcontractors Civil and Infrastructure Enterprise Agreement between Symal Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) for the period 2020-2023. The application sought to have the agreement certified as a single-employer enterprise agreement, thereby ensuring its enforceability under the Fair Work Act 2009. The legal issues at hand centred on whether the agreement met the statutory requirements for single-employer certification and whether it was a genuine bargain between the parties.

The Commission examined the agreement to determine if it was made in good faith, if it was genuinely intended to create a binding agreement, and if it was not made under duress or coercion. The Commission also evaluated whether the agreement contained the mandated minimum terms and conditions as prescribed by the Act, including provisions on minimum wages, classification, and other employment standards. Additionally, the Commission assessed the process by which the agreement was negotiated to ensure it complied with the necessary procedural fairness standards.

In reaching its decision, the Commission considered the evidence provided by both parties and the procedural history of the agreement. It found that the agreement was indeed a genuine bargain, negotiated in good faith, and contained all the required minimum terms and conditions. The Commission also determined that the process of negotiation was conducted with procedural fairness and that the agreement was not made under any form of duress or coercion. Consequently, the Commission approved the agreement, certifying it as a single-employer enterprise agreement. The final orders confirmed the agreement's enforceability, subject to the terms outlined within the document.

Symal Contractors Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established