Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/289)

GARRY DORIAN PAINTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 18 FEBRUARY 2022

Application for approval of the GARRY DORIAN PAINTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the GARRY DORIAN PAINTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating 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 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 25 February 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of the GARRY DORIAN PAINTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The applicant union claimed that the proposed agreement was a "better off overall test" (BOOT) agreement and thus should be approved. The proposed agreement aimed to establish terms and conditions for subcontractors in the painting and decorating industry, covering areas such as wages, hours of work, leave entitlements, and other employment conditions.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement satisfied the BOOT test, which required that the agreement provide employees with better terms and conditions than they would have under the applicable award or safety net award. Additionally, the Commission considered whether the agreement complied with procedural fairness and other relevant legal standards.

In assessing the application, the Commission evaluated the proposed agreement's provisions against the relevant awards and the statutory criteria for approval. The Commission found that the proposed agreement provided employees with better terms and conditions than those available under the applicable awards, thus satisfying the BOOT test. The Commission also determined that the agreement complied with procedural fairness and other legal requirements. Consequently, the Commission approved the proposed enterprise agreement.

The Fair Work Commission approved the GARRY DORIAN PAINTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, effective from 1 July 2020. The approved agreement sets out the terms and conditions for subcontractors in the painting and decorating industry, including wage rates, hours of work, leave entitlements, and other employment conditions. The approval of the agreement was subject to the condition that any variations to the agreement must be approved by the Commission.

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