DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4924)

POLYSEAL WATERPROOFING VICTORIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 18 MAY 2021

Application for approval of the POLYSEAL WATERPROOFING VICTORIA 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 POLYSEAL WATERPROOFING VICTORIA 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 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 25 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involves an application for the approval of the Polyseal Waterproofing Victoria 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 matter was heard in the Fair Work Commission. The central issue before the court was whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement provided for fair and reasonable terms and conditions, and if it met the 'better off overall test', ensuring that the employees would not be worse off if the agreement were to replace the existing awards.

The court began its analysis by considering the structure and content of the proposed agreement. It examined whether the agreement provided for fair and reasonable terms and conditions, including rates of pay, leave entitlements, and other employment conditions. The court also assessed if the agreement met the 'better off overall test', which requires that the agreement should not make the employees worse off than they would be under the applicable award. The court further considered the views and submissions of the parties, as well as any relevant industry benchmarks and awards. After carefully reviewing the evidence and submissions, the court concluded that the proposed agreement did indeed meet the requirements for approval under the Fair Work Act 2009. The agreement was found to provide for fair and reasonable terms and conditions, and it met the 'better off overall test', ensuring that employees would not be worse off under the agreement compared to the existing awards.

Having found that the proposed agreement met the legal requirements, the court approved the Polyseal Waterproofing Victoria 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 court's decision was based on a thorough examination of the agreement's provisions and a comparison with relevant awards and industry benchmarks. The final orders of the court were that the agreement was approved as a registered agreement under the Fair Work Act 2009, effective from the date of the decision. This approval ensures that the terms and conditions outlined in the agreement will apply to the employees covered by the agreement for the duration of its validity.

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