Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8589)

NORTHSIDE CAULKING PTY LTD AS TRUSTEE FOR NORTHSIDE CAULKING BUSINESS TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 8 DECEMBER 2021

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

[1] An application has been made for approval of an enterprise agreement known as the NORTHSIDE CAULKING PTY LTD AS TRUSTEE FOR NORTHSIDE CAULKING BUSINESS 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.

[2] 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.

[3] 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in this case were Northside Caulking Pty Ltd, acting as trustee for the Northside Caulking Business Trust, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the approval of the Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The case was heard in the Fair Work Commission of Australia.

The legal issues before the court were whether the enterprise agreement met the criteria set out in the Fair Work Act 2009. The court needed to determine if the agreement was free from prohibited content, covered a single enterprise, was in writing, and was made in good faith. Additionally, the court had to assess whether the agreement met the requirements of the "better off overall test" (BOOT) under the Fair Work Act, ensuring that no party was worse off as a result of the agreement.

The court found that the enterprise agreement did not contain any prohibited content and was applicable to a single enterprise. The agreement was also in writing and had been made in good faith. Furthermore, the court concluded that the agreement met the BOOT, as it did not result in any party being worse off. Based on these findings, the court approved the enterprise agreement.

As a result of the court's decision, the Northside Caulking Pty Ltd, acting as trustee for the Northside Caulking Business Trust, and the CFMEU (Victorian Construction and General Division) were bound by the terms of the Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. This decision provided certainty and stability for the parties involved in the agreement and ensured compliance with the Fair Work Act.

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