Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7503)

CAPUTO FAMILY TRUST (THE TRUSTEE FOR) T/AS ULTRATEX PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS SOLID PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 SEPTEMBER 2021

Application for approval of the CAPUTO FAMILY TRUST (THE TRUSTEE FOR) T/As ULTRATEX PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Solid Plastering Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the CAPUTO FAMILY TRUST (THE TRUSTEE FOR) T/As ULTRATEX PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Solid Plastering 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 7 October 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 matter before the court involved an application by the Caputo Family Trust, trading as Ultratex Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of their Enterprise Agreement for the period 2020-2023. The court was tasked with determining whether the proposed agreement met the statutory requirements set forth in the Fair Work Act 2009. The agreement aimed to establish the terms and conditions of employment for subcontractors in the solid plastering industry in Victoria.

The primary legal issue before the court was whether the proposed Enterprise Agreement complied with the relevant provisions of the Fair Work Act. Specifically, the court had to assess whether the agreement was made in good faith and whether it met the "better-off overall test" as required by section 234 of the Act. This test ensures that no employee is worse off overall due to the agreement and that at least one employee benefits. Additionally, the court examined whether the agreement provided for minimum terms and conditions, covered the necessary bargaining period, and did not discriminate against any group of employees.

The court found that the proposed Enterprise Agreement met all statutory requirements and was made in good faith. The agreement was deemed to satisfy the better-off overall test, with evidence presented that at least one employee would benefit from the proposed terms. Furthermore, the agreement covered the requisite bargaining period and provided for the minimum terms and conditions mandated by the Act. The court also concluded that the agreement did not discriminate against any group of employees. Consequently, the court approved the Enterprise Agreement, finding it to be fair and reasonable.

The final order of the court was the approval of the proposed Enterprise Agreement between the Caputo Family Trust, trading as Ultratex Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the period 2020-2023. The agreement was to be registered with the Fair Work Commission and would govern the terms and conditions of employment for subcontractors in the solid plastering industry in Victoria for the specified duration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established