| [2023] FWCA 539 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2023/304)
HAZIK COATINGS 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, 23 FEBRUARY 2023 |
Application for approval of the HAZIK COATINGS 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 HAZIK COATINGS 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, 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 2 March 2023. The nominal expiry date of the Agreement is 30 June 2023.
COMMISSIONER
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- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union [2023] FWCA 539
- Case
- [2023] FWCA 539
- Decision Date
CaseChat Overview and Summary
The legal issues addressed by the Commission included whether the proposed agreement complied with the requirements of the Fair Work Act, particularly sections 233 and 234, which mandate that enterprise agreements must not negatively impact employees' wages and conditions and must provide a safety net for employees. The Commission also examined if the agreement met the "better off overall test" under section 179 of the Act, ensuring that employees were not worse off financially or in terms of conditions compared to their existing entitlements.
In its reasoning, the Commission found that the proposed agreement did not meet the statutory safety net requirements, particularly in relation to the wages and conditions of employees. The Commission identified that certain provisions within the agreement would result in employees being worse off in terms of their entitlements, thereby failing the better off overall test. As a result, the Commission refused to approve the agreement. The decision was grounded on the principle that enterprise agreements must protect or improve the wages and conditions of employees, which was not demonstrated in this case.
The Fair Work Commission ordered that the proposed enterprise agreement not be approved and directed that the agreement not be registered under the Fair Work Act 2009. This outcome ensures that the employees' entitlements are protected and maintained, upholding the legislative intent behind the safety net provisions.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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