DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6703)

USHER & SON COATINGS (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 AUGUST 2021

Application for approval of the USHER & SON COATINGS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the USHER & SON COATINGS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating 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 1 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 matter before the court involved an application for the approval of the Usher & Son Coatings (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The applicant, Usher & Son Coatings (Vic) Pty Ltd, sought the court's endorsement of the agreement, which was intended to govern the employment conditions of its subcontractors in the painting and decorating sector. The CFMEU, representing the workers, also supported the application.

The central legal issue for the court was to determine whether the proposed enterprise agreement was fit for purpose, adhering to the criteria set forth in the Fair Work Act 2009. This involved assessing whether the agreement provided fair and reasonable terms and conditions for the employees and did not adversely affect the employees’ overall welfare. Additionally, the court had to ensure that the agreement complied with relevant provisions of the Fair Work Act and did not discriminate against any class of employees.

In delivering the judgment, the court meticulously examined the provisions of the agreement. It found that the agreement met the statutory requirements and was fair and reasonable in all respects. The court highlighted that the agreement contained provisions that protected the rights and interests of the employees, including minimum wage rates, reasonable working hours, and provisions for dispute resolution. Furthermore, the court confirmed that the agreement did not contain any terms that would unfairly disadvantage any class of employees or contravene the provisions of the Fair Work Act.

The court approved the Usher & Son Coatings (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, finding it to be fair and reasonable for the purposes of the Fair Work Act. The agreement was therefore approved as a registered agreement.

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