Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 2677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/2706)

AQUA PROOF (AUST) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS WATERPROOFING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 22 AUGUST 2023

Application for approval of the AQUA PROOF (AUST) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the AQUA PROOF (AUST) 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.

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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 August 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of the CFMEU (Victorian Construction and General Division) Subcontractors, lodged an application for approval of a new enterprise agreement with Aqua Proof (Aust) Pty Ltd. The dispute centred around the terms and conditions of employment, benefits, and the overall fairness of the proposed agreement for the period 2020-2023. The commission had to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The legal issues before the commission included assessing if the agreement provided for fair and reasonable terms and conditions, and if it met the procedural requirements for approval. The commission had to consider the bargaining process, the agreement's compliance with the Fair Work Act, and its adherence to the National Employment Standards and the applicable award provisions. Additionally, the commission examined whether the agreement included provisions for genuine bargaining and if it promoted workplace harmony.

After thorough deliberation, the commission found the proposed agreement to be fair and reasonable. The bargaining process was deemed to have been genuine, and the agreement complied with all legal requirements. The terms and conditions were considered equitable, and the agreement did not undermine workplace rights or entitlements. Consequently, the commission approved the enterprise agreement, highlighting the positive aspects of the negotiated terms and their potential to enhance workplace relations. The final orders included the approval of the enterprise agreement, effective from the specified period of 2020-2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established