DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5740)

SUPERIOR CAULKING PTY LTD 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, 6 JULY 2021

Application for approval of the SUPERIOR CAULKING 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 SUPERIOR CAULKING 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 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 13 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The case involved an application for the approval of the Superior Caulking Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The application was made before the Fair Work Commission, an Australian federal statutory body responsible for the resolution of workplace disputes. The central dispute revolved around whether the proposed agreement met the requirements set out under the Fair Work Act 2009, particularly in terms of its provisions and compliance with the Fair Work (Registered Organisations) Act 2009.

The primary legal issue before the Commission was whether the agreement adequately protected the rights and interests of the employees covered by it, while also ensuring that it did not unfairly disadvantage employers. This involved scrutinising various clauses within the agreement to determine if they complied with the statutory framework designed to balance the interests of employees, employers, and the broader economy. The Commission had to consider if the agreement met the criteria for "being a safety net agreement", as defined in the Fair Work Act, which requires that it not provide less favourable terms and conditions than the applicable award or safety net award.

In its reasoning, the Commission examined the specific provisions of the agreement and assessed them against the legislative standards. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment, including provisions for wages, hours of work, and other employment conditions. The Commission was satisfied that the agreement provided for a safety net that was no less favourable than the relevant safety net award. The Commission found that the agreement complied with the statutory requirements and approved it, highlighting that it adequately protected the rights of employees while not imposing undue burdens on employers. The approval was based on the comprehensive nature of the agreement, which addressed various aspects of employment in a manner consistent with the legislative intent.

The final orders of the Commission were to approve the Superior Caulking Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, effective from the date of the Commission's decision. This approval ensures that the agreement is legally binding and enforceable under the Fair Work Act.

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