DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5737)

PROFINISH FIRE PROTECTION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 2 JULY 2021

Application for approval of the PROFINISH FIRE PROTECTION 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 PROFINISH FIRE PROTECTION 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] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the PROFINISH FIRE PROTECTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The dispute centred on the terms and conditions set out in the proposed agreement, which aimed to regulate the employment relationship between the subcontractor and the union's members in the caulking and sealing industry.

The primary legal issues for the Commission to resolve were whether the proposed agreement complied with the statutory requirements of the Fair Work Act 2009 and whether it met the criteria for being a "single interest" enterprise agreement. Specifically, the Commission had to determine if the agreement provided for a fair and reasonable balance of rights and obligations, and if it was made in good faith and without coercion.

The Commission found that the agreement was compliant with the relevant provisions of the Fair Work Act. It observed that the terms and conditions were reasonable and fair, taking into account the specific nature of the caulking and sealing industry. The Commission was satisfied that the agreement was made in good faith and that the parties had engaged in genuine bargaining. The Commission also concluded that the agreement met the criteria for a "single interest" enterprise agreement, as it was made between a single employer and a single union representing the employees. Consequently, the Commission approved the proposed agreement.

As a result of the Commission's decision, the PROFINISH FIRE PROTECTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 was approved and is now in effect, governing the employment relationship between the subcontractor and the union's members in the caulking and sealing industry for the specified period.

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