DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6097)

BARHAH PTY LTD T/AS ELITE SEALANTS 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, 20 JULY 2021

Application for approval of the BARHAH PTY LTD T/As ELITE SEALANTS 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 BARHAH PTY LTD T/As ELITE SEALANTS 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 27 July 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 parties involved in the case were Barhah Pty Ltd trading as Elite Sealants and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the approval of the Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, which was to be applied between the two parties. The matter was heard by the Fair Work Commission (FWC), an Australian independent statutory tribunal with the responsibility to ensure the protection of employees, employers, and the community through the administration, interpretation, and enforcement of the Fair Work Act 2009.

The primary legal issues the FWC had to address were whether the proposed enterprise agreement met the requirements set out in the Fair Work Act, particularly concerning the provisions of section 235. The FWC needed to determine if the agreement provided for fair and reasonable terms and conditions, and whether it had been genuinely negotiated and concluded in good faith. Another important consideration was whether the agreement complied with the provisions for the protection of vulnerable workers, as stipulated by the Act.

In reaching its decision, the FWC took into account the evidence and submissions provided by both parties. The tribunal assessed the fairness and reasonableness of the agreement's terms and conditions, considering the economic and social context of the industry. The FWC also examined the negotiation process, ensuring that it was conducted in good faith. Ultimately, the FWC found that the proposed agreement met the requirements of the Fair Work Act and approved the Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The FWC's decision was based on the conclusion that the agreement provided fair and reasonable terms and conditions, and that it had been genuinely negotiated and concluded in good faith.

As a result of the FWC's decision, the Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 was approved and registered, effective from the date of the FWC's determination. The agreement will now govern the employment terms and conditions of the employees of Barhah Pty Ltd trading as Elite Sealants who are members of the CFMEU.

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