Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 1529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1246)

CLEAN SEAL AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 9 MAY 2022

Application for approval of the CLEAN SEAL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the CLEAN SEAL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing 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 16 May 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 matter before the Fair Work Commission involved an application for the approval of the CLEAN SEAL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The application was brought by the CFMEU, and the primary respondent was Clean Seal Australia Pty Ltd. The dispute centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, particularly in terms of procedural fairness and the provision of adequate information to employees.

The key legal issues before the Commission were whether the application process for approving the enterprise agreement was conducted in a manner that ensured procedural fairness and whether the employer had provided sufficient information to the employees to enable them to make an informed decision about the agreement. The Commission needed to determine if the employer had fulfilled its obligations under section 173 of the Fair Work Act, which requires that the application for approval of an enterprise agreement be accompanied by a statement that all employees affected by the agreement have been provided with relevant information.

In delivering its decision, the Commission examined the evidence presented regarding the process of informing employees and the content of the information provided. It was found that the employer had made reasonable efforts to inform employees about the agreement, including providing access to the agreement and a summary of its key provisions. The Commission acknowledged that while some employees did not respond to the communication, the employer had taken steps to ensure that employees were aware of the agreement and had the opportunity to review it. The Commission concluded that the process was procedurally fair and that the employer had provided adequate information to employees, thereby meeting the statutory requirements for the approval of the enterprise agreement.

Consequently, the Fair Work Commission approved the CLEAN SEAL AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, effective from the date of the decision. This approval was made on the basis that the application process was conducted in a manner that ensured procedural fairness and that the employer had provided adequate information to the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established