DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6262)

RESA CONSTRUCTION PTY LTD T/AS RESA BUILT 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, 28 JULY 2021

Application for approval of the RESA CONSTRUCTION PTY LTD T/AS RESA BUILT 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 RESA CONSTRUCTION PTY LTD T/AS RESA BUILT 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 4 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

The matter before the Fair Work Commission involved an application for the approval of a Subcontractors Caulking and Sealing Enterprise Agreement between RESA Construction Pty Ltd t/as RESA Built and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically for the Victorian Construction and General Division. The application was brought under the Fair Work Act 2009, with the goal of establishing terms and conditions of employment for caulking and sealing subcontractors engaged by RESA Built.

The primary legal issues the Commission needed to address were whether the agreement met the requirements set out in the Fair Work Act and whether it was in the best interests of the employees it sought to cover. This included ensuring the agreement was not less favourable than the relevant awards or other applicable industrial instruments, and that it complied with the good faith bargaining and public interest requirements.

The Commission found that the agreement was made in good faith and did not contain any terms that were less favourable than the relevant awards. The CFMEU had demonstrated that it had genuinely sought to reach an agreement with RESA Built and had considered other options available to its members. Furthermore, the agreement was deemed to be in the best interests of the employees it sought to cover, as it provided for certain benefits and protections, including provisions for dispute resolution, training, and health and safety. The Commission approved the agreement, finding that it met all the necessary criteria under the Act.

The Fair Work Commission approved the Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 between RESA Construction Pty Ltd t/as RESA Built and the CFMEU (Victorian Construction and General Division). This decision confirmed that the agreement was made in good faith, did not contain any terms less favourable than the relevant awards, and was in the best interests of the employees it sought to cover.

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