Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8229)

USHER & SON COMMERCIAL COATINGS (VIC) 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, 17 NOVEMBER 2021

Application for approval of the USHER & SON COMMERCIAL COATINGS (VIC) PTY LTD 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 USHER & SON COMMERCIAL COATINGS (VIC) 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.

[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 24 November 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023 between USHER & SON COMMERCIAL COATINGS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division). The CFMEU sought to have the agreement approved under section 232 of the Fair Work Act 2009, arguing that it contained all the necessary provisions, was fair and balanced, and complied with relevant legislative requirements. The employer contested the application on several grounds, including concerns about certain provisions that it believed were either unfair or not necessary.

The central legal issues before the Commission involved whether the agreement met the statutory requirements for approval under the Fair Work Act. These included ensuring that the agreement contained all necessary provisions, was fair and balanced, and did not contain terms that were contrary to public policy. The Commission had to examine each clause of the agreement to determine if it met these criteria and if any provisions were excessive, oppressive, or discriminatory. Furthermore, the Commission considered whether the agreement was in the best interests of the employees and if it facilitated a productive and harmonious workplace.

The Commission examined the provisions of the agreement in detail, assessing whether they complied with the Fair Work Act and other relevant legislation. It found that while many of the provisions were fair and balanced, certain clauses could be considered excessive or discriminatory. Despite these concerns, the Commission concluded that the overall agreement was beneficial for the employees and did not contravene any legislative requirements. Consequently, the Commission approved the agreement with some modifications to address the identified issues. This decision was based on the premise that the benefits of the agreement outweighed the concerns raised by the employer.

The final orders of the Commission included the approval of the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023 with modifications to certain clauses to ensure compliance with the Fair Work Act. The Commission mandated that specific provisions be altered to address the concerns regarding excessive or discriminatory terms. This decision ensures that the agreement remains fair and balanced while also complying with legislative requirements. The modifications were aimed at maintaining a productive and harmonious workplace for the employees covered by the agreement.

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