Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1443)

HERITAGE WALLPAPER 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, 29 MAY 2023

Application for approval of the HERITAGE WALLPAPER 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 HERITAGE WALLPAPER 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 5 June 2023. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Heritage Wallpaper Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), sought approval of the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, which was entered into pursuant to the Fair Work Act 2009. The application was heard by the Fair Work Commission, with Deputy President R J Griggs presiding. The respondents, the Australian Building and Construction Commission and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), opposed the approval of the agreement, arguing that it did not comply with the relevant statutory requirements.

The primary legal issue before the court was whether the agreement met the requirements for approval under the Fair Work Act. Specifically, the court needed to determine if the agreement complied with the procedural requirements, and if the terms and conditions were fair and reasonable. The court also had to consider whether the agreement was consistent with the principles of the Australian Industrial Relations Commission, including the avoidance of industrial action and the promotion of productivity.

The Fair Work Commission found that the agreement complied with the procedural requirements of the Fair Work Act, as it was made in good faith and followed the necessary processes. The court examined the terms and conditions of the agreement and found that they were fair and reasonable, taking into account the nature of the industry and the need to balance the interests of employers and employees. The court also considered the principles of the Australian Industrial Relations Commission, and concluded that the agreement promoted productivity and avoided industrial action. As a result, the Fair Work Commission approved the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023.

The final orders of the Fair Work Commission were that the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act, effective from the date of the decision. The agreement was to be registered by the Registrar of the Fair Work Commission and published on the Fair Work Commission's website. The respondents were ordered to pay the applicants' costs of the application, to be agreed upon or assessed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established