Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/381)

TOP TIER CAULKING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 mARCH 2023

Application for approval of the TOP TIER CAULKING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TOP TIER CAULKING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing 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 10 March 2023. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for the TOP TIER CAULKING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The agreement pertains to the working conditions of caulkers employed by subcontractors in the construction industry. The Fair Work Commission (FWC) had previously rejected the application for approval, citing that the agreement failed to meet certain legal standards. The CFMEU appealed this decision to the court.

The central legal issue before the court was whether the FWC was correct in rejecting the application for approval. Specifically, the court had to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009. The focus was on whether the agreement met the criteria for "better off overall and in the round" (BOOT), which ensures that employees are not disadvantaged by the terms of the agreement. Additionally, the court examined whether the agreement adhered to the principles of good faith bargaining and whether it was made in accordance with the law.

The court found that the FWC's decision to reject the application was not unreasonable. The court held that the agreement did not sufficiently demonstrate that the caulkers would be better off overall and in the round compared to the existing conditions. Furthermore, the court noted that the agreement did not adequately address the issue of casual loading, which was a significant concern for the employees. The court concluded that the FWC had appropriately exercised its discretion in rejecting the application, and the appeal was dismissed. Consequently, the agreement was not approved by the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established