Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4124)

SUBSTRATE WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 12 OCTOBER 2022

Application for approval of the SUBSTRATE WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the SUBSTRATE WATERPROOFING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing 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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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 19 October 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

[1] [2019] FWCFB 318.

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 Substrate Waterproofing Pty Ltd sought approval of their Subcontractors Waterproofing Enterprise Agreement 2020-2023. The agreement sought to regulate the employment of subcontractors within the waterproofing industry. The application for approval was made under section 230 of the Fair Work Act 2009, and the CFMEU submitted the application on behalf of the employees covered by the agreement. The application was contested by a number of entities, including the Australian Building and Construction Commission, which argued that the agreement failed to meet the requirements of the Act.

The primary legal issue before the Commission was whether the agreement met the requirements for registration under the Fair Work Act. The CFMEU argued that the agreement was a valid enterprise agreement, while the Australian Building and Construction Commission contended that the agreement was invalid as it did not comply with the requirements of the Act. The Commission had to consider whether the agreement was genuinely negotiated, and whether it provided for a fair and efficient workplace. The Commission also had to consider whether the agreement met the requirements for registration, including whether it was in writing, provided for a process for resolving disputes, and met the requirements for coverage.

The Commission found that the agreement was a genuine enterprise agreement and met the requirements for registration under the Fair Work Act. The Commission found that the agreement was negotiated in good faith and provided for a fair and efficient workplace. The Commission also found that the agreement met the requirements for registration, including that it was in writing, provided for a process for resolving disputes, and met the requirements for coverage. The Commission found that the agreement provided for the protection of employees' rights and interests, and that it was in the best interests of the employees covered by the agreement. The Commission approved the agreement, and it will now be registered with the Fair Work Commission.

The Commission made an order approving the Subcontractors Waterproofing Enterprise Agreement 2020-2023. The order was made under section 230 of the Fair Work Act, and it is effective from the date of the order. The agreement will now be registered with the Fair Work Commission, and it will apply to the employees covered by the agreement. The order also provides for the agreement to be amended in the future, subject to the requirements of the Act. The Commission's decision provides certainty for employers and employees in the waterproofing industry, and it ensures that the agreement is compliant with the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established