Construction, Forestry and Maritime Employees Union Summary

[2025] FWCA 1476

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2025/1247)

AQUA PROOF (AUST) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS WATERPROOFING ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 5 MAY 2025

Application for approval of the AQUA PROOF (AUST) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the AQUA PROOF (AUST) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2024 - 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry and Maritime Employees Union (CFMEU). The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The CFMEU, 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 was approved on 5 May 2025 and, in accordance with s.54 of the Act, will operate from Monday 12 May 2025. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the AQUA PROOF (AUST) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2024 - 2027. The application was heard by the Fair Work Commission, which has the jurisdiction to approve enterprise agreements under the Fair Work Act 2009 (Cth). The key parties in the dispute were Aqua Proof (Aust) Pty Ltd, a waterproofing contractor, and the Construction, Forestry and Maritime Employees Union (CFMEU), which represented the interests of its members in the waterproofing industry. The union sought to ensure fair and equitable terms and conditions for its members, while the employer aimed to maintain operational flexibility and efficiency.

The primary legal issues before the Commission involved whether the proposed agreement met the statutory criteria for approval under the Fair Work Act. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions, and if it was made in good faith. The Commission also had to consider if the agreement contained any unfair provisions, and if it complied with the requirements for independent advice and the disclosure of certain information to employees. These issues were central to the Commission's assessment of whether the agreement could be certified as meeting the legal standards for enterprise agreements.

In reaching its decision, the Commission examined the content of the proposed agreement, including the terms and conditions it provided for employees. The Commission noted that the agreement contained provisions for wages, penalties for breaches, and other employment conditions. The Commission also assessed whether the agreement was made in good faith, considering the negotiation process and the conduct of the parties. Importantly, the Commission found that the agreement met the statutory criteria for approval, as it provided for fair and reasonable terms and conditions and was made in good faith. The Commission further determined that there were no unfair provisions and that the necessary disclosures had been made to employees.

The Fair Work Commission approved the proposed enterprise agreement, finding that it met the requirements of the Fair Work Act. The Commission certified the AQUA PROOF (AUST) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2024 - 2027 as a valid and binding agreement, effective from the date of the Commission's approval. This decision ensures that the terms and conditions outlined in the agreement will govern the employment relationship between the employer and the union members during the specified period.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established