Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/9084)

AAH CONTRACTING 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 AAH CONTRACTING 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 AAH CONTRACTING 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

The matter before the Fair Work Commission involved an application for the approval of the AAH CONTRACTING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Asbestos Removal Enterprise Agreement 2020-2023. The application was brought by the CFMEU, and the applicant sought the approval of the agreement under the Fair Work Act 2009. The dispute centred on whether the agreement met the requirements for approval as a protected action agreement, specifically addressing the rights and protections of employees involved in asbestos removal work.

The primary legal issues the court had to decide were whether the agreement was a protected action agreement as defined in the Fair Work Act, and whether it complied with the procedural requirements for approval, including proper notification and the opportunity for objections. The court also had to consider whether the agreement provided fair and reasonable terms and conditions for employees, and if the process for its approval was fair and transparent.

The Fair Work Commission found that the agreement was a protected action agreement and was made in good faith for the purpose of preventing or addressing a workplace dispute. The commission was satisfied that the agreement complied with the procedural requirements, including proper notification and the opportunity for objections. The commission considered the terms of the agreement and found them to be fair and reasonable, taking into account the nature of the work and the interests of both parties. The commission approved the agreement, recognising its importance in addressing the specific risks and challenges associated with asbestos removal work.

The commission's decision was based on the evidence presented and the legal framework provided by the Fair Work Act. The final orders included the approval of the AAH CONTRACTING PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Asbestos Removal Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the parties were directed to comply with its terms.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established