Construction, Forestry and Maritime Employees Union - [2025] FWCA 1095

[2025] FWCA 1095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2025/362)

ZENITH WORKFORCE AUST PTY LTD T-AS ZENITH CIVIL / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 31 MARCH 2025

Application for approval of the Zenith Workforce Aust Pty Ltd t-as Zenith Civil / CFMEU Collective Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the Zenith Workforce Aust Pty Ltd t-as Zenith Civil / CFMEU Collective Agreement 2024 – 2027 Agreement). The application was made the Construction, Forestry and Maritime Employees Union (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement. The employer covered by the Agreement is Zenith Workforce Aust Pty Ltd (Employer).

The Agreement will replace the Zenith Workforce Aust Pty Ltd t-as Zenith Civil/CFMEU Collective Agreement 2019 – 2023[1] (Current Agreement) which is a greenfields agreement made between the Applicant and employer and which was approved on 8 November 2023.

The Agreement covers a small cohort consisting of two employees and was voted up by two employees who cast an eligible vote.

Section 188(2) provides that the Fair Work Commission (Commission) cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by it unless the Commission is satisfied that the employees requested to approve the agreement by voting for it:

(a) have a sufficient interest in its terms; and
(b) are sufficiently representative, having regard to the employees the agreement is expressed to cover.

A note appearing under s.188 in the Act states:

‘Note: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved’.

Section 188(1) of the Act provides that the Commission must take into account the statement of principles made under s.188B (SoPs) in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by it. In relation to s.188(2), Principle 17 of the SoPs relevantly provides:

‘In considering whether employees have a sufficient interest in the terms of an enterprise agreement as required by section 188(2)(a) of the Fair Work Act, and whether the employees are sufficiently representative as required by section 188(2)(b), the FWC may take into account:

(a) whether the employees entitled to vote on the enterprise agreement are to be paid the rates of pay provided for in the agreement, and
(b) the extent to which the employees entitled to vote on the enterprise agreement are employed across the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCA 1095
Decision Date: 31 MARCH 2025

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) applied for the approval of the Zenith Workforce Aust Pty Ltd t-as Zenith Civil/CFMEU Collective Agreement 2024-2027 under section 185 of the Fair Work Act 2009 (Cth). The Agreement is a single enterprise agreement covering two employees and was voted up by these employees. The legal issues that the Fair Work Commission had to decide were whether the employees who voted on the Agreement had a sufficient interest in the terms of the enterprise agreement and whether they were sufficiently representative, having regard to the employees the agreement is expressed to cover.

The Commission found that the employees had a sufficient interest in the Agreement within the meaning of section 188(2)(a) of the Act as they were to be paid the rates of pay provided by the Agreement. The Commission also found that the employees who voted on the Agreement were sufficiently representative, having regard to the employees the Agreement is expressed to cover. The coverage provisions of the Agreement apply to employees who are engaged on work in New South Wales and who are eligible to be members of the Applicant. The Agreement’s classification structure suggests that the Agreement’s coverage is not intended to span work in a wide range of industries and unrelated to construction sites and projects. The circumstances of this matter are distinguishable from the decisions in One Key and KCL where the agreements in question provided only marginal increases to pay, while removing a number of conditions that employees would have been entitled to under the relevant modern award.

The Fair Work Commission approved the Agreement and it will operate from 7 April 2025. The nominal expiry date of the Agreement is 4 July 2027.

Orders