Danlaid Contracting Pty Ltd

[2021] FWCA 6000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Danlaid Contracting Pty Ltd
(AG2021/7353)

DANLAID CONTRACTING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS WATERPROOFING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 SEPTEMBER 2021

Application for approval of the Danlaid Contracting Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the Danlaid Contracting Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing 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.

[2] 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.

[3] 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 October 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Danlaid Contracting Pty Ltd applied for the approval of the Danlaid Contracting Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023. The agreement was intended to regulate the employment terms and conditions of the employees of Danlaid Contracting Pty Ltd. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) was the relevant union party involved in the negotiation of the agreement. The dispute centred around whether the proposed agreement complied with the requirements of the Fair Work Act 2009, particularly in terms of the agreement's coverage, the bargaining process, and its alignment with the relevant award and statutory minimum entitlements.

The court was required to determine whether the agreement met the statutory criteria for approval, including whether it was fairly and genuinely negotiated, covered employees, and was consistent with the applicable award and minimum standards. The court also needed to assess whether the agreement contained provisions that were not in the best interests of the employees, and whether there was adequate consultation and disclosure during the bargaining process. Furthermore, the court had to consider whether the agreement provided for adequate protections for employees, such as provisions regarding termination, redundancy, and dispute resolution.

After examining the evidence and submissions from both parties, the court found that the agreement was fairly and genuinely negotiated, and that it was consistent with the relevant award and statutory minimum entitlements. The court was satisfied that the agreement covered all relevant employees and that there had been adequate consultation and disclosure during the bargaining process. The court also concluded that the agreement contained provisions that were in the best interests of the employees, including provisions for termination, redundancy, and dispute resolution. Accordingly, the court approved the agreement, finding that it complied with the relevant provisions of the Fair Work Act 2009.

The final orders of the court were that the Danlaid Contracting Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023 was approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered with the Fair Work Commission and would apply to the employees of Danlaid Contracting Pty Ltd from the date of the approval. The court also ordered that the agreement would remain in force until 30 June 2023, or until it was terminated or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established