DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/349)

WETSPOT CONSOLIDATED (VIC) 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, 3 MARCH 2021

Application for approval of the WETSPOT CONSOLIDATED (VIC) 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 WETSPOT CONSOLIDATED (VIC) 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] 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 10 March 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of an enterprise agreement. The applicant employers, WetSpot Consolidated (Vic) Pty Ltd and CFMEU (Victorian Construction and General Division) Subcontractors, were seeking approval of the Subcontractors Waterproofing Enterprise Agreement 2020-2023. The dispute centred around whether the proposed agreement met the requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement complied with the procedural and substantive requirements for approval, including whether the agreement had been genuinely negotiated, if it included provisions that were procedurally fair, and if it met the ‘better off overall test’. Additionally, the Commission needed to consider whether the agreement contained appropriate dispute resolution provisions.

The Commission determined that the agreement had been genuinely negotiated and met the procedural requirements for approval. It was found to contain procedurally fair provisions and satisfied the ‘better off overall test’. The Commission also considered the dispute resolution provisions to be appropriate. Consequently, the Commission approved the proposed agreement.

Accordingly, the Fair Work Commission approved the Subcontractors Waterproofing Enterprise Agreement 2020-2023, with effect from 1 January 2021. The approval was subject to the agreement being registered with the Registrar of the Fair Work Commission.

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