Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 1725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1729)

MCKINNON'S GROUP PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 15 JUNE 2023

Application for approval of the MCKINNON'S GROUP PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the MCKINNON’S GROUP PTY. LTD. 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.

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 22 June 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

The Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of the Victorian Construction and General Division Subcontractors, filed an application for the approval of the McKinnon's Group Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission, which is tasked with the approval of enterprise agreements to ensure they meet specific criteria under the Fair Work Act 2009. The primary dispute centred on whether the agreement satisfied the requirements of the Act, particularly with respect to the process of agreement and the rights and protections afforded to employees.

The court was required to determine whether the agreement was genuinely negotiated between the parties, whether it included appropriate dispute resolution mechanisms, and if the agreement provided adequate protections for employees' rights and entitlements. Additionally, the court had to verify if the agreement complied with the provisions of the Fair Work Act, including the requirement for "no-disadvantage" and "better off overall" tests. The central legal issue was whether the agreement, as presented, fulfilled all necessary statutory requirements and was in the best interests of the employees.

The Fair Work Commission, in its decision, closely examined the negotiation process and the content of the agreement. The Commission found that the agreement was genuinely negotiated and included appropriate dispute resolution mechanisms. It was determined that the agreement provided adequate protections for employees, met the no-disadvantage and better off overall tests, and was in compliance with the Fair Work Act. The Commission concluded that the agreement was fair and reasonable, and approved the application for registration. The decision highlighted the importance of thorough negotiation processes and the inclusion of comprehensive employee protections in enterprise agreements.

As a result of the Commission's approval, the McKinnon's Group Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023 is now registered and enforceable. This decision underscores the importance of adhering to the legislative framework in the negotiation and drafting of enterprise agreements to ensure they meet the statutory requirements and protect the interests of employees.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established