Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 3235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/3738)

WESTERN 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, 16 SEPTEMBER 2022

Application for approval of the WESTERN 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 WESTERN 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 23 September 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 this matter, Western Painting Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) sought approval of their Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission. The dispute centred around the validity and fairness of the agreement terms, specifically addressing concerns raised by the union and employer representatives regarding various provisions within the agreement. The key issues involved the interpretation and application of the Fair Work Act 2009, particularly sections relating to the process for approving enterprise agreements.

The Fair Work Commission examined the submissions from both parties and considered whether the agreement met the criteria for approval, including whether it provided for the payment of minimum rates of pay, entitlements, and conditions of employment. The Commission also assessed whether the agreement was free from prohibited content and whether it was made in good faith and without coercion. After considering the evidence and submissions, the Commission concluded that the agreement was fair and met all necessary requirements under the Act.

Consequently, the Commission approved the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The decision emphasised the importance of fair and equitable terms in enterprise agreements and the role of the Commission in ensuring compliance with the legislative framework. The approval of the agreement allows for its implementation, providing a framework for the employment conditions of the workers covered by the agreement.

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