Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8633)

ADENA UNIT TRUST T/AS CHAPMAN GARDNER 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, 10 DECEMBER 2021

Application for approval of the ADENA UNIT TRUST T/As CHAPMAN GARDNER 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 ADENA UNIT TRUST T/As CHAPMAN GARDNER 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 17 December 2021. 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, an application was made by the Adena Unit Trust trading as Chapman Gardner Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Asbestos Removal Enterprise Agreement 2020-2023. The application sought approval of the proposed agreement, which aimed to regulate the terms and conditions of employment for asbestos removal workers within the specified period. The dispute arose from the negotiation and subsequent agreement on terms that would govern the employment relationship between the parties involved.

The primary legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved assessing whether the agreement contained all the minimum entitlements mandated by law, and whether it was made in good faith and without coercion. Furthermore, the Commission had to determine if the agreement was appropriate for the workers it covered and if it complied with procedural requirements.

In delivering its decision, the Commission evaluated the proposed agreement against the statutory criteria. The Commission found that the agreement contained all the minimum entitlements as prescribed by the Fair Work Act, and that it was made in good faith. The agreement was deemed appropriate for the specific group of workers involved in asbestos removal. Additionally, the procedural requirements were satisfied, as the agreement was the result of genuine negotiations between the parties. Consequently, the Commission approved the proposed agreement, finding it to be fair and reasonable.

The Fair Work Commission approved the proposed agreement, effective from the date of the decision. The agreement was to be registered and would govern the employment conditions of the relevant workers until the end of the specified period. The Commission's approval was based on the finding that the agreement met all statutory requirements and was appropriate for the workers it covered.

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