Construction, Forestry, Maritime, Mining and Energy Union Summary

[2023] FWCA 342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/131)

ELITE MASTER PAINTERS GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the ELITE MASTER PAINTERS 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 ELITE MASTER PAINTERS 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 10 February 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 Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the ELITE MASTER PAINTERS GROUP PTY LTD (employer) applied for approval of the ELITE MASTER PAINTERS GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The CFMEU argued the enterprise agreement provided appropriate coverage for its members, was free from prohibited content, and complied with the good faith bargaining requirement. The employer opposed the application, arguing that the agreement failed to comply with the good faith bargaining requirement and did not adequately cover the intended bargaining unit.

The Commission considered the evidence presented by both parties and examined the terms of the agreement. It found that the agreement did not adequately cover the intended bargaining unit and that the employer had not engaged in good faith bargaining. The Commission also found that the agreement contained prohibited content, including provisions that were contrary to the objects of the Fair Work Act. The Commission concluded that the agreement did not meet the requirements for approval and dismissed the application.

The Commission ordered that the enterprise agreement be not approved. The CFMEU and the employer were directed to negotiate in good faith to reach an agreement that met the requirements for approval. The employer was also directed to provide the CFMEU with access to its books and records to facilitate the negotiation process. The CFMEU was directed to provide the employer with a list of its members who were intended to be covered by the agreement. The parties were directed to report back to the Commission within six months to provide an update on their negotiations.

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