DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5164)

ANJNEY BUILDING SERVICES PTY LTD TAS ABS PAINTING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 27 MAY 2021

Application for approval of the ANJNEY BUILDING SERVICES PTY LTD Tas ABS PAINTING and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the ANJNEY BUILDING SERVICES PTY LTD Tas ABS PAINTING and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating 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 3 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, ANJNEY BUILDING SERVICES PTY LTD, sought approval from the Fair Work Commission for a new enterprise agreement, the Tas ABS PAINTING and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The applicant's employees were covered by the Construction, Forestry, Maritime, Mining, Energy Union (CFMEU), which opposed the application, arguing that the proposed agreement failed to meet the "better off overall test" under the Fair Work Act 2009. The dispute was heard in the Fair Work Commission, which was required to determine whether the proposed agreement provided employees with a better outcome than the existing industrial instrument or the applicable safety net.

The central legal issue was whether the proposed agreement satisfied the statutory criteria for approval under the Fair Work Act. This required the Commission to assess whether the agreement would deliver a better overall outcome for the employees than what they would receive under the applicable safety net or their existing conditions. This assessment involved examining the terms and conditions of the proposed agreement, including wages, hours of work, leave provisions, and other employment benefits, against the existing industrial instrument and the safety net provisions. The Commission also needed to consider whether the agreement was made in good faith and without coercion.

The Commission found that the proposed agreement met the "better off overall test" as it provided employees with improved wages, conditions, and benefits compared to the safety net. The Commission acknowledged that the agreement contained provisions that were less favourable than the existing industrial instrument in some respects, but these were outweighed by the overall benefits provided. The Commission was satisfied that the agreement was made in good faith and without coercion, and therefore approved the application for registration. The Commission's decision was based on a detailed analysis of the terms and conditions of the proposed agreement and a comparison with the existing industrial instrument and the safety net provisions.

The Fair Work Commission approved the registration of the Tas ABS PAINTING and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, finding that it met the "better off overall test" under the Fair Work Act. The Commission determined that the proposed agreement provided employees with improved wages, conditions, and benefits compared to the safety net, despite some less favourable provisions compared to the existing industrial instrument. The Commission was satisfied that the agreement was made in good faith and without coercion, and therefore approved the application for registration. The decision provides clarity for employers and employees in the painting and decorating industry regarding the requirements for a valid enterprise agreement 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