Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 4497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/5258)

SKY JAY CAULKING PTY LTD T/AS SKY JAY CAULKING 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, 23 DECEMBER 2022

Application for approval of the SKY JAY CAULKING PTY LTD T/As SKY JAY CAULKING 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 SKY JAY CAULKING PTY LTD T/As SKY JAY CAULKING 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 30 December 2022. 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

The matter before the Fair Work Commission involved an application for the approval of the SKY JAY CAULKING PTY LTD T/As SKY JAY CAULKING and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The application was brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) on behalf of the employees and by the employer on behalf of the employer. The agreement was to regulate the terms and conditions of employment for caulking and sealing subcontractors working for SKY JAY CAULKING PTY LTD. The central dispute was whether the terms of the proposed agreement complied with the provisions of the Fair Work Act 2009.

The primary legal issues before the court were whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement provided for fair and reasonable terms and conditions, whether it was in accordance with the process requirements outlined in the Act, and if it contained any prohibited content. The court also needed to consider whether the agreement adequately covered the employees within its scope and if the process for its creation was fair.

The Fair Work Commission found that the proposed agreement was compliant with the requirements of the Fair Work Act 2009. The Commission noted that the agreement provided for fair and reasonable terms and conditions, and that it was made in accordance with the relevant processes. The Commission also determined that the agreement did not contain any prohibited content and was appropriately scoped to cover the relevant employees. The Commission concluded that the application for approval should be granted, finding that the agreement met all the necessary statutory requirements.

In light of the findings, the Fair Work Commission approved the SKY JAY CAULKING PTY LTD T/As SKY JAY CAULKING and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The Commission's decision was based on the determination that the agreement was fair, reasonable, and in compliance with the Fair Work Act 2009. The agreement was thus approved and will govern the terms and conditions of employment for caulking and sealing subcontractors working for SKY JAY CAULKING PTY LTD for the duration specified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established