Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 3329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3904)

TRIPLE R PAINTING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 27 SEPTEMBER 2022

Application for approval of the TRIPLE R 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 TRIPLE R 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 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 4 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

The applicants in this matter are the Triple R Painting Pty Ltd, a painting contractor, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), representing the interests of subcontractors in the painting industry. They sought the Fair Work Commission's approval of the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, which governs the terms and conditions of employment for painting subcontractors in Victoria. The Commission's task was to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission involved assessing whether the agreement was "genuinely agreed" and "free from coercion and duress," as mandated by the Fair Work Act. The Commission had to consider the process by which the agreement was negotiated and whether it was free from any undue influence or pressure exerted by either party. Additionally, the Commission needed to ensure that the agreement provided for a fair and reasonable set of terms and conditions for the employees it covered, taking into account the broader context of industrial relations in the sector.

The Commission determined that the agreement was genuinely negotiated and not influenced by any form of coercion or duress. It found that the process followed was appropriate and that both parties had acted in good faith. The terms and conditions of the agreement were deemed fair and reasonable, taking into account the specific circumstances of the painting industry. The Commission noted that the agreement provided a balanced outcome for both the employers and the employees, with adequate protections and benefits for the latter. Consequently, the Commission approved the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023.

The final orders of the Commission were to approve the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the relevant employees until such time as it was replaced or terminated in accordance with the provisions of the Fair Work Act. The Commission's decision provided certainty for both the employers and employees covered by the agreement, ensuring that they would be governed by a set of terms and conditions that had been found to be fair and reasonable by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established