Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7005)

CAULK CENTRAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 SEPTEMBER 2021

Application for approval of the CAULK CENTRAL PTY LTD 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 CAULK CENTRAL PTY LTD 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 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 21 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of an enterprise agreement between CAULK CENTRAL PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission, which has jurisdiction to approve, disapprove or vary enterprise agreements under the Fair Work Act 2009. The parties sought approval of the agreement which aimed to regulate terms and conditions of employment for caulkers and sealers employed by the company.

The primary legal issue before the Commission was whether the agreement complied with the provisions of the Fair Work Act. Specifically, the Commission had to determine if the agreement was a "single, integrated and coherent" document, if it contained provisions that were contrary to public policy, and if it complied with the "better off overall test" under section 233 of the Act. This test requires that the agreement must not detriment employees overall and must provide them with at least the same conditions as the relevant award or safety net.

The Fair Work Commission examined the agreement closely and found it to be a single, integrated and coherent document. It held that the agreement did not contain any provisions that were contrary to public policy. The Commission also determined that the agreement satisfied the "better off overall test", as employees would be at least as well off under the agreement as they would be under the relevant award. The Commission was satisfied that the agreement provided for improved conditions and protections for employees, including provisions for casual loading, penalty rates, and rest breaks.

Consequently, the Fair Work Commission approved the agreement, finding it to be a valid and compliant enterprise agreement. This decision highlights the importance of ensuring that enterprise agreements comply with the Fair Work Act and satisfy the requirements of the "better off overall test". Employers and unions should take care to ensure that any agreements they seek to enter into meet these criteria, and seek legal advice if necessary.

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