DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6008)

STRONG SEAL WATERPROOFING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS WATERPROOFING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 JULY 2021

Application for approval of the STRONG SEAL WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the STRONG SEAL WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing 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 22 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

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union applied to the Fair Work Commission for the approval of the STRONG SEAL WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023. The applicant union is the employer’s exclusive bargaining agent for a class of employees, and the respondent company is an employer in the waterproofing industry. The union and employer had negotiated a proposed enterprise agreement which the union sought to have registered. The issues before the Court were whether the agreement met the requirements of the Fair Work Act 2009 and was in the public interest.

The Court held that the agreement met the formal requirements of the Fair Work Act. It contained the mandated minimum terms and conditions, and was consistent with the relevant federal and state legislation. The Court found that the agreement had been fairly negotiated in good faith, and was not contrary to public policy or the public interest. The union had demonstrated that the agreement would provide employees with better pay and conditions than the relevant modern awards.

Accordingly, the Court approved the agreement, which will now be registered with the Fair Work Commission. The agreement will apply to employees of Strong Seal Waterproofing Pty Ltd who are members of the union. The approval of the agreement provides those employees with the terms and conditions set out in the agreement, rather than the default pay and conditions in the relevant awards. The union and employer can now implement the agreement and it will be in force from 1 July 2020 until 30 June 2023, unless terminated earlier in accordance with the agreement’s provisions.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established