Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/9142)

AUSTRALASIAN TECHNICAL SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ASBESTOS REMOVAL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 DECEMBER 2021

Application for approval of the AUSTRALASIAN TECHNICAL SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asbestos Removal Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the AUSTRALASIAN TECHNICAL SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Asbestos Removal 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] 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.

[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 6 January 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of an enterprise agreement with Australasia Technical Services Pty Ltd. The proposed agreement, titled the "Austral Technical Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Asbestos Removal Enterprise Agreement 2020-2023," was put forward for the workers employed by Australasia Technical Services Pty Ltd in the asbestos removal industry. The primary dispute centred on whether the agreement met the requirements of the Fair Work Act 2009 and if it was fair and reasonable for the workers involved.

The legal issues before the court were whether the agreement contained all the prescribed terms and conditions mandated by the Fair Work Act, and if it was procedurally sound and fair to the employees. Key concerns included the clarity and comprehensiveness of the agreement, particularly regarding the provisions for wages, leave, and other employment conditions. The court also needed to assess whether the agreement had been negotiated genuinely and whether there was adequate representation and consultation with the employees.

The Fair Work Commission found that the agreement was procedurally sound, having been negotiated in good faith and with genuine consultation between the parties. The court noted that the agreement contained all the prescribed terms and conditions as required by the Fair Work Act. It also concluded that the agreement was fair and reasonable for the employees, providing adequate protection and benefits. The court emphasised the importance of the agreement in addressing the specific needs of the asbestos removal industry, taking into account the unique challenges and risks associated with the work.

The Fair Work Commission approved the proposed enterprise agreement, allowing it to come into effect as per the terms specified. The decision highlighted the importance of tailored agreements that cater to the specific requirements of particular industries while ensuring fairness and compliance with the Fair Work Act. This outcome provided certainty for both the employer and the employees involved in the asbestos removal sector.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established