Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4393)

8 STAR COMMERCIAL PAINTING 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, 2 NOVEMBER 2022

Application for approval of the 8 STAR COMMERCIAL PAINTING 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 8 STAR COMMERCIAL PAINTING 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 9 November 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 case involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and 8 Star Commercial Painting Pty Ltd for the approval of the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. This agreement was made under the Fair Work Act 2009. The dispute was heard in the Fair Work Commission, which is responsible for regulating the terms and conditions of employment in Australia.

The legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act, specifically whether it provided for fair and reasonable terms and conditions, and whether it complied with the "better off overall test" (BOOT). This test ensures that the terms and conditions of the agreement are at least as good as those provided under the relevant award or existing agreements.

The Commission examined the provisions of the agreement and found that it included a mix of terms that were better than and some that were worse than the relevant award. However, the Commission concluded that the overall effect of the agreement was that the employees would be better off than if they were covered solely by the award. The Commission took into account the increased wages, improved working conditions, and other benefits provided by the agreement. The Commission also noted the parties' commitment to resolving disputes through negotiation and conciliation, which was seen as a positive aspect of the agreement.

Following this analysis, the Fair Work Commission approved the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The approval was based on the finding that the agreement met the requirements of the Fair Work Act and provided for fair and reasonable terms and conditions for the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established