Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8561)

ARK COATINGS PTY LTD AS TRUSTEE FOR ARK COATINGS UNIT TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 7 DECEMBER 2021

Application for approval of the ARK COATINGS PTY LTD AS TRUSTEE FOR ARK COATINGS UNIT TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the ARK COATINGS PTY LTD AS TRUSTEE FOR ARK COATINGS UNIT TRUST 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.

[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 14 December 2021. 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 matter before the Fair Work Commission involved an application for approval of the ARK Coatings Pty Ltd as Trustee for Ark Coatings Unit Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The dispute arose as the union sought to formalise terms and conditions for subcontractors within the painting and decorating sector, while the employer aimed to establish a fair and comprehensive agreement that would also protect their business interests.

The central legal issues before the commission were whether the proposed agreement complied with the Fair Work Act 2009 and whether it met the requirements for being a "better off overall test" (BOOT) agreement. The commission had to assess if the agreement provided fair and reasonable terms for both parties, ensured the rights of employees, and met the procedural requirements set out in the Act.

The commission examined the agreement's provisions, considering factors such as the nature of the industry, the bargaining power of the parties, and the impact on employees. The commission found that the agreement was procedurally valid and substantively fair. It provided reasonable terms and conditions that protected the interests of both the employer and the employees, and met the BOOT criteria. The commission approved the agreement, recognising its balance between the rights of employees and the legitimate business needs of the employer.

The Fair Work Commission approved the ARK Coatings Pty Ltd as Trustee for Ark Coatings Unit Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was registered, and the parties were bound by its terms.

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