Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/105)

SUTAS FAMILY TRUST T/AS AP & MJ SUTAS PAINTING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 31 JANUARY 2023

Application for approval of the SUTAS FAMILY TRUST T/As AP & MJ SUTAS PAINTING 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 SUTAS FAMILY TRUST T/As AP & MJ SUTAS PAINTING 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 7 February 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

In this matter, the applicants, the SUTAS FAMILY TRUST trading as AP & MJ SUTAS PAINTING, sought approval from the Fair Work Commission for the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The dispute arose when the respondents, represented by the Australian Building and Construction Commission, contested the application on the grounds that the agreement did not meet certain criteria for approval under the Fair Work Act 2009. The matter was heard by the Fair Work Commission, led by Commissioner Holmes.

The primary legal issue before the court was whether the enterprise agreement in question complied with the procedural and substantive requirements set out in the Fair Work Act. The court was required to assess the agreement against the backdrop of the Act's provisions concerning enterprise agreements, including the necessity for genuine bargaining, the absence of prohibited content, and the agreement's compliance with the Better Off Overall Test (BOOT). Furthermore, the court had to consider the arguments presented by the respondents regarding the agreement's fairness and potential detriment to the workforce.

After thorough deliberation, the Fair Work Commission found that the agreement did not meet the requirements for approval. The court determined that the agreement had not been genuinely bargained as it did not adequately reflect the input of the employees it purported to cover. Additionally, the court held that the agreement contained certain provisions that were not in accordance with the Act, specifically those concerning the definition of "employee" and the entitlement to certain benefits. The court also found that the agreement failed to meet the BOOT, as it did not provide any clear or significant advantages to the employees over what they would have received under the applicable award. These findings led to the conclusion that the application for approval should be dismissed.

Consequently, the Fair Work Commission dismissed the application for approval of the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The decision highlights the importance of ensuring that enterprise agreements are genuinely bargained, free from prohibited content, and comply with the requirements of the Fair Work Act, including the BOOT. This case serves as a reminder to employers and unions of the need to adhere to the legislative framework governing enterprise agreements in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established