Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6891

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8412)

WATERTITE WATERPROOFING PTY LTD AS TRUSTEE FOR HAMPSON FAMILY TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS WATERPROOFING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 NOVEMBER 2021

Application for approval of the WATERTITE WATERPROOFING PTY LTD AS TRUSTEE FOR HAMPSON FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the WATERTITE WATERPROOFING PTY LTD AS TRUSTEE FOR HAMPSON FAMILY TRUST 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.

[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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between WATERTITE WATERPROOFING PTY LTD, as trustee for the HAMPSONS FAMILY TRUST, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The agreement in question was the Subcontractors Waterproofing Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission, which had to determine whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues addressed by the Court were whether the agreement was made in good faith, whether it contained the minimum terms and conditions required by law, and whether it was free from any unfair content. Additionally, the Court had to consider whether the agreement provided for proper consultation and negotiation processes, and whether it complied with the procedural requirements for approval as outlined in the Fair Work Act.

The Court found that the agreement was made in good faith and contained all the necessary minimum terms and conditions. It also determined that the agreement was free from any unfair content, as it did not adversely affect the employees' job security, wages, or other conditions of employment. Furthermore, the Court was satisfied that the agreement had been properly negotiated and that the procedural requirements for approval had been met. Consequently, the Court approved the Subcontractors Waterproofing Enterprise Agreement 2020-2023.

In light of the Court's decision, it approved the Subcontractors Waterproofing Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement now serves as the legally binding contract between WATERTITE WATERPROOFING PTY LTD, as trustee for the HAMPSONS FAMILY TRUST, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division).

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