DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6566)

PRO PAINTING AUSTRALIA 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, 17 AUGUST 2021

Application for approval of the PRO PAINTING AUSTRALIA 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 PRO PAINTING AUSTRALIA 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 24 August 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

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Pro Painting Australia Pty Ltd applied to the Fair Work Commission for the approval of their Enterprise Agreement. The agreement, spanning from 2020 to 2023, governs the employment conditions of subcontractors in the painting and decorating industry within Victoria. The application was made under the Fair Work Act 2009, seeking the Commission's endorsement of the agreement, which it deems necessary to be a "registered agreement" to be effective.

The primary legal issue before the Commission was whether the proposed agreement met the criteria for approval as set out in the Fair Work Act. This involved examining if the agreement provided for fair and reasonable terms and conditions, if it had been genuinely negotiated, and if it complied with the procedural requirements for registration. The Commission also had to determine if the agreement satisfied the "better off overall test," ensuring that the agreement would not disadvantage employees compared to their current conditions or the applicable award.

The Commission undertook a detailed analysis of the agreement, considering the submissions from both parties and the broader implications for the industry. It found that the agreement met the statutory requirements for approval, including being genuinely negotiated and compliant with the procedural guidelines. Furthermore, the Commission concluded that the agreement would not place employees in a worse position than they were under their existing conditions or the applicable award, thus satisfying the better off overall test. Consequently, the Commission approved the Enterprise Agreement, which will now be a binding contract between Pro Painting Australia Pty Ltd and its subcontractors in the painting and decorating sector in Victoria.

In light of the approval, the Commission issued orders formalising the registration of the PRO PAINTING AUSTRALIA PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The agreement is now enforceable under the Fair Work Act, governing the employment terms and conditions for the specified period.

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