Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1402)

LOLAN BUILDING SERVICES 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, 20 MAY 2022

Application for approval of the LOLAN BUILDING SERVICES 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 LOLAN BUILDING SERVICES 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 27 May 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and LOLAN Building Services Pty Ltd, which sought approval for their Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The dispute was brought before the Fair Work Commission. The matter required the court to determine whether the proposed enterprise agreement was suitable for approval under the Fair Work Act 2009. Specifically, the court needed to assess if the agreement met the "better off overall test" (BOOT), ensuring that employees would be no worse off financially and at least some employees would be better off.

The court examined the proposed agreement's provisions, including wage rates, conditions of employment, and any other terms that might affect employees. The key issue was whether the agreement provided sufficient benefits to some employees to compensate for any potential disadvantages to others, thus satisfying the BOOT requirement. The court took into account submissions from both parties, expert evidence, and any other relevant material. The court's reasoning focused on the overall impact of the agreement on the workforce, including analysis of the financial implications and the fairness of the terms proposed.

After thorough consideration, the court determined that the agreement met the better off overall test. It found that while some employees might experience minor disadvantages, others would benefit sufficiently to meet the statutory requirement. The court concluded that the proposed agreement would promote harmonious, productive, and cooperative workplace relations, as intended by the legislation. Consequently, the court approved the Subcontractors Painting & Decorating Enterprise Agreement 2020-2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established