Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 4152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4838)

CASEY TILING AND WATERPROOFING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TILELAYERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 DECEMBER 2022

Application for approval of the CASEY TILING AND WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CASEY TILING AND WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers 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 8 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

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union, on behalf of employees, sought approval of the CASEY TILING AND WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023. The primary issue before the court was whether the agreement met the criteria for approval under the Fair Work Act 2009. The case was heard in the Fair Work Commission, an Australian federal statutory court with jurisdiction over employment law.

The central legal issue was whether the agreement complied with the requirements for a modern award, including provisions concerning minimum wages and conditions, overtime rates, penalty rates, and other entitlements. The court also examined whether the agreement was free from any unfair content that would undermine its enforceability or the rights of employees. The union argued that the agreement was fair and balanced, while the employer contended that certain provisions were overly burdensome.

The court determined that the agreement contained provisions that were not aligned with a modern award. Specifically, the overtime and penalty rates outlined in the agreement were less favourable than those stipulated in the relevant modern award. As such, these provisions did not meet the criteria for approval. The court found that the agreement contained unfair content, as it proposed conditions that were less advantageous to employees than those provided for under the applicable modern award. Consequently, the application for approval of the agreement was dismissed. The court's decision was based on the statutory requirements for enterprise agreements and the need to ensure that employees' rights and entitlements were protected.

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