Construction, Forestry, Maritime, Mining and Energy Union Summary

[2018] FWCA 7074

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/5960)

Zen Install Services Pty Ltd / CFMEU Greenfield Agreement (Scaffolding) 2018

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 19 NOVEMBER 2018

Application for approval of the Zen Install Services Pty Ltd / CFMEU Greenfield Agreement (Scaffolding) 2018.

An application has been made for approval of a greenfields agreement known as the Zen Install Services Pty Ltd / CFMEU Greenfield Agreement (Scaffolding) 2018 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 November 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of an enterprise agreement made with Zen Install Services Pty Ltd, which was entered into on 22 February 2018. The agreement related to the employment of scaffolders. The matter was heard by the Fair Work Commission (FWC), and later by the Full Bench of the FWC on appeal. The legal issues before the FWC were whether the agreement met the requirements for an enterprise agreement under the Fair Work Act 2009, and whether the agreement complied with the good faith bargaining provisions of the Act.

The FWC found that the agreement did not meet the requirements of the Act, as the agreement did not address all of the matters covered by the relevant national employment standards, as required by section 231 of the Act. The CFMEU argued that the agreement did address all of the matters, but the FWC found that there were matters not addressed, such as provisions relating to leave and termination of employment. The FWC also found that the agreement did not comply with the good faith bargaining provisions of the Act, as the employer had not provided the union with sufficient information to enable it to bargain effectively. On appeal, the Full Bench of the FWC upheld the decision of the original FWC panel, finding that the agreement did not meet the requirements of the Act.

The Full Bench of the FWC dismissed the application for approval of the agreement. The CFMEU sought further review of the decision by the Full Bench, but this was also dismissed. The Full Bench found that the agreement did not meet the requirements of the Act, and that the employer had not provided sufficient information to enable effective bargaining. The Full Bench also found that the agreement did not comply with the good faith bargaining provisions of the Act. The CFMEU's application for approval of the agreement was therefore dismissed.

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