DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6011)

COMP SEAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 15 JULY 2021

Application for approval of the COMP SEAL PTY LTD 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 COMP SEAL PTY LTD 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 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 22 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter involved an application for the approval of a subcontractor's enterprise agreement between COMP SEAL PTY LTD and the CFMEU (Victorian Construction and General Division). The application was heard by the Fair Work Commission, a tribunal with jurisdiction to oversee and approve such agreements. The dispute centred on whether the agreement complied with the statutory requirements under the Fair Work Act 2009, including the necessity of having genuine bargaining between the parties and the inclusion of all necessary provisions.

The legal issues before the court were whether the agreement reflected genuine bargaining and whether it contained all the mandatory minimum terms and conditions as required by the Fair Work Act. The CFMEU contested that the agreement did not meet the genuine bargaining requirement as the parties did not engage in meaningful discussions. Additionally, the union argued that the agreement failed to include all mandatory minimum terms and conditions, such as provisions for redundancies and the right to request flexible working arrangements.

The Commission found that genuine bargaining had occurred as the parties had engaged in discussions, albeit limited, and the agreement reflected the views of both parties. The Commission also determined that the agreement included all mandatory minimum terms and conditions, either explicitly or implicitly. It was concluded that the agreement was fair and reasonable, meeting all statutory requirements for approval. The Commission granted the application for approval of the enterprise agreement.

The Fair Work Commission approved the COMP SEAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. This decision confirmed the agreement's compliance with the Fair Work Act and its provisions, thus allowing it to be registered and enforced as a binding enterprise 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