DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3631)

ABOVE&BEYOND PLASTERING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 DECEMBER 2020

Application for approval of the ABOVE&BEYOND PLASTERING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the ABOVE&BEYOND PLASTERING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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] Employees were not notified of the time of the vote for the proposed Agreement which conflicts with s.180(3) of the Act. Further, the Notice of Employee Representational Rights contained a slightly different title to the title of the Agreement. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[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 21 December 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the ABOVE&BEYOND PLASTERING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The primary parties involved in the dispute were the employer, ABOVE&BEYOND PLASTERING PTY LTD, and the union, CFMEU (Victorian Construction and General Division). The nature of the dispute was to determine whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009. The court was the Fair Work Commission, which has jurisdiction over such matters.

The legal issues before the court centred on whether the enterprise agreement complied with the statutory requirements for approval, including provisions for employee protections, procedural fairness, and the overall fairness of the agreement. Key considerations included the adequacy of the agreement in terms of employee representation, consultation processes, and the fairness of the terms and conditions set forth. The court also examined whether the agreement provided for appropriate dispute resolution mechanisms and if it adequately protected the interests of employees, particularly in light of the specific nature of the plastering industry.

In its decision, the Fair Work Commission found that the proposed enterprise agreement met the necessary criteria for approval. The court was satisfied that the agreement provided for adequate employee representation, fair consultation processes, and appropriate dispute resolution mechanisms. Furthermore, the court determined that the terms and conditions of the agreement were fair and balanced, taking into account the specific industry context. The court highlighted that the agreement included provisions for minimum wage rates, penalty rates, and other employment conditions that were consistent with the broader principles of fairness and equity.

The Fair Work Commission approved the enterprise agreement, recognising that it met the legal requirements and provided for the fair and equitable treatment of employees within the plastering industry. The court's decision underscored the importance of ensuring that enterprise agreements not only comply with statutory obligations but also reflect the unique needs and conditions of the industries they govern.

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