DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sealwell (Vic) Pty Ltd
(AG2021/6493)

SEALWELL (VIC) 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, 11 AUGUST 2021

Application for approval of the Sealwell (Vic) 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 Sealwell (Vic) 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 Sealwell (Vic) Pty Ltd. 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 18 August 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

The applicants, Sealwell (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division), sought approval of their Subcontractors Waterproofing Enterprise Agreement 2020-2023, which was entered into pursuant to section 233 of the Fair Work Act 2009. The application was heard by the Fair Work Commission, presided over by Deputy President C.M. Smith. The primary concern of the application was whether the proposed agreement met the criteria for approval under the Fair Work Act, specifically focusing on the agreement's compliance with the "better-off-overall test" and its adherence to the Fair Work Act's public interest provisions.

The court was required to determine if the proposed agreement was genuinely negotiated and if it provided a better outcome for the employees than the applicable award. This included assessing whether the agreement provided for a minimum rate of pay, conditions, and entitlements that were not less favourable than those provided under the applicable award. Additionally, the court had to consider if the agreement was in the public interest, including whether it promoted high wages and conditions, maintained productivity, and encouraged workplace harmony.

The court found that the agreement met the statutory requirements for approval. It confirmed that the agreement was genuinely negotiated and provided employees with terms and conditions that were not less favourable than those under the applicable award. The court also found that the agreement promoted high wages and conditions, maintained productivity, and encouraged workplace harmony, thus satisfying the public interest test. Consequently, the court approved the application, allowing the agreement to be registered and in force from the date of the approval decision.

The final order of the court was the approval of the Sealwell (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023, effective from the date of the decision.

Sealwell (Vic) Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established