Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/400)

ACE CAULK PTY LTD AS TRUSTEE FOR DREDGE TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 28 FEBRUARY 2022

Application for approval of the ACE CAULK PTY LTD AS TRUSTEE FOR DREDGE TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the ACE CAULK PTY LTD AS TRUSTEE FOR DREDGE TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing 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.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 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 7 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of the ACE CAULK PTY LTD AS TRUSTEE FOR DREDGE TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The dispute arose as the Union contended that the proposed enterprise agreement was fair and appropriate, whereas the trustee for the trust challenged its fairness and compliance with statutory requirements.

The court had to determine whether the enterprise agreement was fair and reasonable, as mandated by the Fair Work Act 2009. The trustee argued that the agreement failed to adequately address the interests of non-unionised employees and did not comply with certain statutory provisions. The Union, on the other hand, argued that the agreement was fair and reasonable, taking into account the needs and interests of all employees, including those who were not union members.

The court assessed the fairness of the agreement based on the criteria outlined in the Fair Work Act 2009. It considered factors such as the nature of the work, the level of pay and conditions, and the balance of interests between employers and employees. The court also examined the agreement's compliance with statutory requirements, such as the need for fair and reasonable terms and conditions of employment. After careful consideration, the court determined that the agreement was fair and reasonable, taking into account the interests of all employees and complying with the statutory requirements. The court approved the enterprise agreement, finding it to be fair and reasonable in all respects.

The court's decision was based on a thorough analysis of the agreement's provisions and the interests of all parties involved. The court found that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the needs and interests of both union and non-unionised employees. The court also found that the agreement complied with the statutory requirements of the Fair Work Act 2009. As a result, the court approved the enterprise agreement, allowing it to come into effect as intended.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established