Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7384)

ZEALMORE (AUST) 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, 23 SEPTEMBER 2021

Application for approval of the ZEALMORE (AUST) 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 ZEALMORE (AUST) 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 30 September 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 applicant, the Construction, Forestry, Maritime, Mining and Energy Union, sought approval for the Subcontractors Asbestos Removal Enterprise Agreement 2020-2023 between Zealmore (Aust) Pty Ltd and the CFMEU (Victorian Construction and General Division). The dispute arose due to disagreements about the agreement's provisions and their compliance with the Fair Work Act 2009. The matter was heard by the Fair Work Commission, which had jurisdiction to determine the application.

The primary legal issues involved whether the agreement met the requirements of the Fair Work Act, particularly sections relating to the approval of enterprise agreements. The court had to assess whether the agreement was appropriately negotiated, whether it contained unfair provisions, and if it adhered to the procedural fairness requirements. The court also examined whether the agreement complied with the public interest test, considering the impact on the broader construction industry.

The court found that the agreement was appropriately negotiated and did not contain any unfair provisions. It also determined that the agreement complied with the procedural fairness requirements and met the public interest test. The court considered the potential benefits of the agreement, including improved safety standards and better working conditions for employees in the asbestos removal industry. The court concluded that the overall benefits of the agreement outweighed any potential detriments.

The Fair Work Commission approved the Subcontractors Asbestos Removal Enterprise Agreement 2020-2023. The decision was made in favour of the applicant, and the agreement was approved as meeting the requirements of the Fair Work Act. The court's decision was based on the evidence presented, which demonstrated that the agreement was appropriately negotiated and met the necessary legal standards.

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