DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5247)

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

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 2 JUNE 2021

Application for approval of the TOTAL SEAL GROUP 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 TOTAL SEAL GROUP 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 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 9 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of an application for approval of the TOTAL SEAL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023, the Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009. The application was made by the employer, TOTAL SEAL GROUP PTY LTD, and the union, CFMEU (Victorian Construction and General Division). The dispute centred on the terms and conditions outlined in the proposed enterprise agreement, with a focus on whether these terms complied with the relevant statutory provisions and the principles of good faith bargaining.

The legal issues before the Commission involved the scrutiny of various provisions within the agreement, including those related to wages, hours of work, penalty rates, and other employment conditions. The Commission had to assess whether these provisions were consistent with the Fair Work Act and whether they demonstrated a genuine attempt by both parties to reach a fair and reasonable agreement. Additionally, the Commission was required to consider whether the agreement contained any terms that were unfair or unjust to either party, as well as whether the agreement provided for a fair and efficient workplace.

In reaching its decision, the Commission undertook a detailed examination of the provisions of the agreement, taking into account submissions from both parties and any relevant evidence. The Commission found that, while there were some areas of concern, the overall agreement was fair and reasonable. The Commission noted that both parties had engaged in good faith bargaining and that the agreement provided for a fair and efficient workplace. Consequently, the Commission approved the enterprise agreement, subject to certain minor modifications to address the identified concerns.

The final orders of the Commission included the approval of the TOTAL SEAL GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023, with the aforementioned modifications. The Commission determined that the agreement was fair and reasonable, and that it met the requirements of the Fair Work Act. Both parties were directed to give effect to the approved agreement, and the Commission set a timeframe for the implementation of the modifications.

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