DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6912)

THE AXIAK FAMILY TRUST (THE TRUSTEE FOR) T/AS WESTSIDE SEALANTS 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, 7 SEPTEMBER 2021

Application for approval of the THE AXIAK FAMILY TRUST (THE TRUSTEE FOR) T/As WESTSIDE SEALANTS 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 THE AXIAK FAMILY TRUST (THE TRUSTEE FOR) T/As WESTSIDE SEALANTS 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 14 September 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 Axiak Family Trust (the trustee for) Westside Sealants Pty Ltd sought approval of a new Enterprise Agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement was to cover the employees of Westside Sealants who are involved in caulking and sealing work. The case was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the proposed agreement met the requirements of the Fair Work Act 2009 and if it was in the best interests of the employees involved. This included determining if the agreement contained all the mandated minimum terms and conditions, and if the process of reaching the agreement was fair and lawful.

The Commission examined the bargaining process, the content of the agreement, and whether it provided fair and reasonable terms for the employees. The Axiak Family Trust argued that the agreement was the result of genuine and good faith bargaining and that it provided fair terms and conditions for the employees. The CFMEU supported the agreement, stating that it had been negotiated in good faith and that it provided adequate protections for the employees. The Commission found that the agreement met the legislative requirements and was fair and reasonable. It approved the agreement, finding that it contained all the mandated minimum terms and conditions and that the bargaining process was genuine and lawful.

In approving the agreement, the Commission noted the importance of maintaining a balance between the rights of employers and employees, and ensuring that the agreement provided fair and reasonable terms for all parties involved. The Commission also highlighted the importance of good faith bargaining in reaching a fair and reasonable agreement. The final order was that the agreement was approved and would come into effect from the date of the decision.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established