Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2430)

WHARTON CORPORATION PTY. LTD. T/As ACTION ALLIANCE and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 26 JULY 2022

Application for approval of the WHARTON CORPORATION PTY. LTD. T/As ACTION ALLIANCE 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 WHARTON CORPORATION PTY. LTD. T/As ACTION ALLIANCE 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 2 August 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application for approval of the Wharton Corporation Pty. Ltd. t/as Action Alliance and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The dispute arose from the application process under the Fair Work Act 2009, specifically concerning the procedural fairness and the terms of the enterprise agreement. The Commission was tasked with determining whether the application process was conducted fairly and whether the agreement met the legal standards for approval.

The primary legal issues before the Commission were whether the procedural fairness requirements under section 232 of the Fair Work Act were adhered to during the application process and whether the terms of the enterprise agreement were consistent with the Fair Work Act, including compliance with the Good Faith Bargaining provisions. The Commission also had to consider the balance of interests between the employer and the employees, as well as the broader implications for the industry.

The Fair Work Commission found that the application process was conducted in accordance with procedural fairness, with appropriate notice and opportunity for the parties to be heard. The Commission also determined that the enterprise agreement met the legal requirements for approval. The terms of the agreement were found to be reasonable, taking into account the needs of the employees and the operational realities of the industry. The Commission noted the importance of maintaining good faith bargaining and ensuring that the agreement did not unfairly disadvantage any party. Based on these findings, the Commission approved the enterprise agreement.

The Fair Work Commission's final order was to approve the Wharton Corporation Pty. Ltd. t/as Action Alliance and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, effective from the date of the decision. This approval ensures that the terms of the agreement will govern the employment conditions of the relevant employees for the duration specified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established