Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7517)

AWARE UNIT TRUST (THE TRUSTEE FOR) T/AS AUSTRALIA WIDE ASBESTOS REMOVAL ENCAPULATION 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 SEPTEMBER 2021

Application for approval of the AWARE UNIT TRUST (THE TRUSTEE FOR) T/As AUSTRALIA WIDE ASBESTOS REMOVAL ENCAPULATION 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 AWARE UNIT TRUST (THE TRUSTEE FOR) T/As AUSTRALIA WIDE ASBESTOS REMOVAL ENCAPULATION 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 7 October 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

The matter before the Fair Work Commission involved an application by the AWARE Unit Trust, trading as Australia Wide Asbestos Removal Encapsulation Pty Ltd, for the approval of a new enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The trust sought the agreement to be applicable to its subcontractors involved in asbestos removal and encapsulation services. The dispute centred on whether the proposed agreement met the necessary legal standards for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining if the agreement complied with the formal requirements of the Act, and if it passed the 'better off overall test' which assesses whether employees would be better off under the new agreement than they would be under their existing conditions.

The central legal issues revolved around the formal requirements of the proposed agreement and whether it complied with the Fair Work Act 2009. Specifically, the court had to determine if the agreement contained all the prescribed particulars, if it had been appropriately negotiated, and if it met the 'better off overall test'. The Commission also had to consider whether the agreement was in the best interests of the employees and whether it provided a fair and reasonable outcome for all parties involved.

The Fair Work Commission found that the proposed agreement did meet the formal requirements of the Fair Work Act 2009. The agreement was deemed to contain all the necessary prescribed particulars and had been negotiated in good faith. The Commission also concluded that the agreement passed the 'better off overall test', as it provided a fair and reasonable outcome for the employees. The terms of the agreement were found to be in the best interests of the employees, with provisions that addressed their needs and improved their conditions. The Commission approved the subcontractor asbestos removal enterprise agreement 2020-2023, thereby resolving the dispute in favour of the applicant.

The final orders of the Fair Work Commission were that the subcontractor asbestos removal enterprise agreement 2020-2023 be approved and registered. This decision provided legal certainty for the parties involved and ensured that the agreement would be applicable to the subcontractors engaged by the AWARE Unit Trust.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established