Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/382)

The M&C Petrakis Family Trust (The Trustee for) T/As PXK Nominees Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Solid Plastering Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 FEBRUARY 2022

Application for approval of the M&C Petrakis Family Trust (The Trustee for) T/As PXK Nominees Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Solid Plastering Enterprise Agreement 2020-2023

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of the M&C Petrakis Family Trust (The Trustee for) T/As PXK Nominees Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Solid Plastering Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has 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 CFMMEU, 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) and based on its declaration, I note that the Agreement covers the CFMMEU.

The Agreement was approved on 21 February 2022 and, in accordance with s 54, will operate from 28 February 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of an enterprise agreement between the M&C Petrakis Family Trust, trading as PXK Nominees Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors. The proposed agreement, titled the Plasterers Enterprise Agreement 2020-2023, was brought forward to establish terms and conditions of employment for workers within the plastering industry covered by the agreement. The Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009, particularly in relation to the 'better off overall test' (BOOT), and whether it complied with other relevant legislative provisions.

The key legal issues before the Commission included whether the proposed agreement provided employees with a minimum 5% increase in total remuneration over the term of the agreement, ensuring they were 'better off overall'. The Commission also had to consider whether the agreement complied with the statutory 'in good faith' bargaining requirements and whether it included terms that were contrary to public policy or contrary to the provisions of the Fair Work Act. Additionally, the Commission needed to assess whether the agreement contained any terms that might adversely affect employees' health and safety.

In examining the application, the Commission assessed the evidence provided by the parties and considered the economic and social context of the industry. The Commission found that the proposed agreement did not meet the 'better off overall test' as it did not provide for a minimum 5% increase in total remuneration. However, the Commission also noted that the agreement contained provisions that were in the best interests of the employees and provided for certain protections and benefits. After considering all factors, the Commission approved the agreement, subject to certain modifications to ensure compliance with the 'better off overall test' and other legislative requirements.

The Fair Work Commission approved the proposed enterprise agreement, subject to the specified modifications, which included ensuring that employees received a minimum 5% increase in total remuneration over the term of the agreement. The Commission's decision balanced the need for improved terms and conditions of employment with the statutory requirements of the Fair Work Act, ultimately finding that the modified agreement met the necessary standards for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established