Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7336)

KORBAN, SHADDY T/AS FINE FINISH CAULKING 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, 23 SEPTEMBER 2021

Application for approval of the KORBAN, SHADDY T/As FINE FINISH CAULKING 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 KORBAN, SHDADDY T/As FINE FINISH CAULKING 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 30 September 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 case involved an application for the approval of the Fine Finish Caulking and Sealing Enterprise Agreement 2020-2023 between KORBAN, SHADDY trading as Fine Finish Caulking and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was heard in the Fair Work Commission (FWC). The dispute centred on whether the proposed enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement complied with the provisions of the Act, including whether it was certified by an independent certifier and whether it met the requirements for coverage, negotiation, and procedural fairness.

The key legal issues that the FWC had to address included whether the agreement was appropriately certified, if it covered employees in a manner consistent with the Act, and whether the process of negotiating and drafting the agreement was fair and compliant with relevant legal standards. Additionally, the FWC needed to assess if the agreement included all mandatory terms and conditions required by the Act and whether it was in the best interests of the employees it covered. The FWC also considered the arguments presented by the parties regarding the agreement's compliance with the relevant legislative framework.

In its decision, the FWC found that the proposed agreement was appropriately certified and that the negotiation process was fair. The FWC confirmed that the agreement met all mandatory terms and conditions and was in the best interests of the employees it covered. The FWC concluded that the agreement complied with the requirements of the Fair Work Act and granted approval for the Fine Finish Caulking and Sealing Enterprise Agreement 2020-2023. The FWC’s decision was based on the thorough examination of the evidence and submissions provided by both parties, leading to the determination that the agreement was fit for purpose and in accordance with the relevant legal standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established