DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5733)

ELITE PATCHING 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, 2 JULY 2021

Application for approval of the ELITE PATCHING 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 ELITE PATCHING 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 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 9 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 applicant, ELITE PATCHING, along with the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, sought the court’s approval for a proposed enterprise agreement. The agreement was aimed at regulating the terms and conditions of employment for caulkers and sealers in Victoria’s construction industry. The matter was heard in the Fair Work Commission.

The primary legal issue before the court was whether the proposed enterprise agreement complied with the requirements set forth in the Fair Work Act 2009. This involved assessing whether the agreement was made in good faith, whether it complied with the procedural prerequisites, and if it met the substantive requirements, including the provision of fair and reasonable terms and conditions. The court also needed to consider whether the agreement provided adequate protections for employees, including provisions for minimum rates of pay, penalty rates, and other employment terms.

The court found that the proposed agreement was made in good faith and followed the necessary procedural steps. It satisfied the substantive requirements of the Fair Work Act, including ensuring fair and reasonable terms and conditions for employees. The agreement provided for minimum rates of pay, appropriate penalty rates, and other employment terms that were fair and reasonable. The court also noted that the agreement included provisions for dispute resolution and compliance mechanisms, which were essential for its effectiveness. Consequently, the court approved the agreement, finding it to be in the best interests of the employees it covered.

The court’s final order was the approval of the ELITE PATCHING and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. This approval ensures that the agreement can now be implemented, providing a framework for the terms and conditions of employment for caulkers and sealers in Victoria’s construction industry. The decision underscores the importance of enterprise agreements in balancing the interests of employers and employees while adhering to the statutory requirements of 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