Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/253)

AUSTIN WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 16 FEBRUARY 2022

Application for approval of the AUSTIN WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the AUSTIN WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing 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 23 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

The application before the Fair Work Commission was to approve the Austin Waterproofing Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023. The dispute involved the terms and conditions of employment for waterproofing subcontractors within the construction industry. The application was brought before the Fair Work Commission, Australia's industrial relations tribunal.

The primary legal issues before the Commission were whether the agreement was a "better off overall test" (BOOT) compliant agreement, and whether it complied with the relevant provisions of the Fair Work Act 2009. This included assessing whether the agreement provided employees with at least the minimum entitlements set out in the relevant awards and whether the agreement was made in good faith and without coercion. The Commission also needed to determine whether the agreement met the "in writing" requirement and whether it was a genuine enterprise agreement.

The Fair Work Commission found that the agreement met the BOOT, as it provided employees with at least the minimum entitlements set out in the relevant awards, and in many cases, improved upon these entitlements. The Commission also found that the agreement was made in good faith and without coercion, and that it met the "in writing" requirement. Furthermore, the Commission was satisfied that the agreement was a genuine enterprise agreement, as it was negotiated between the employer and the union representing the employees. Consequently, the Fair Work Commission approved the agreement, finding that it met the requirements of the Fair Work Act.

The Fair Work Commission's approval of the Austin Waterproofing Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023 means that the agreement is now legally binding on the parties involved. The agreement sets out the terms and conditions of employment for waterproofing subcontractors within the construction industry, including wages, hours of work, leave entitlements, and other employment-related matters. The approval of this agreement is an important step in ensuring fair and equitable working conditions for employees in the waterproofing industry.

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