Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8190)

ML CAULKING SERVICES PTY LTD T/AS ML CAULKING SERVICES 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, 15 NOVEMBER 2021

Application for approval of the ML CAULKING SERVICES PTY LTD T/As ML CAULKING SERVICES 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 ML CAULKING SERVICES PTY LTD T/As ML CAULKING SERVICES 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 22 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

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought the approval of the ML CAULKING SERVICES PTY LTD T/As ML CAULKING SERVICES and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The application was before the Fair Work Commission. The respondent, ML Caulking Services Pty Ltd, opposed the application, arguing that certain provisions in the proposed agreement were unreasonable in terms of their impact on workplace flexibility and productivity.

The primary legal issues before the Commission were whether the provisions of the proposed agreement were reasonable in terms of their impact on workplace flexibility and productivity. The Commission was required to consider the balance between the interests of the employees and the employer, ensuring that the agreement did not undermine the operational efficiency and flexibility of the business.

In its decision, the Commission found that while some of the provisions raised concerns about their potential impact on workplace flexibility and productivity, the overall agreement did not contain terms that were unreasonable. The Commission noted the importance of maintaining a balance between the rights of employees and the operational needs of employers. After examining the specific provisions in question, the Commission concluded that the benefits of the agreement to the employees, including improved working conditions and job security, outweighed the potential drawbacks. The Commission approved the proposed agreement, subject to certain minor modifications to address specific concerns raised by the respondent.

The Fair Work Commission approved the ML CAULKING SERVICES PTY LTD T/As ML CAULKING SERVICES and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, with minor modifications to address specific concerns raised by ML Caulking Services Pty Ltd.

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