DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6204)

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

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 26 JULY 2021

Application for approval of the MAGEE COATINGS 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 MAGEE COATINGS 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 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicants in this case, Magee Coatings Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), sought approval of a Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. This agreement was to cover the terms and conditions of employment for painting and decorating subcontractors working in the painting and decorating industry in Victoria. The application was heard in the Fair Work Commission, an Australian federal statutory tribunal.

The central legal issues that the Commission had to address were whether the proposed agreement was a "new" agreement as defined by the Fair Work Act 2009, whether the agreement met the criteria for being "better off overall" and whether it complied with the good faith bargaining requirements. The Commission had to consider whether the agreement represented an improvement in the terms and conditions of employment for the affected employees and whether the bargaining process had been conducted in good faith by both parties.

In determining these issues, the Commission found that the agreement was a "new" agreement, meeting the definition under the Fair Work Act. The Commission also found that the agreement was better off overall for the employees, taking into account the various factors such as wages, conditions, and dispute resolution mechanisms. The Commission concluded that the agreement had been negotiated in good faith by both parties and that it complied with the requirements of the Act. The Commission approved the proposed agreement, finding it to be fair and reasonable in all the circumstances.

The Fair Work Commission approved the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, effective from 1 July 2020 for a period of three years. The approval ensures that the terms and conditions of employment for painting and decorating subcontractors in the painting and decorating industry in Victoria are regulated and protected under the approved 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