DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5770)

ADENA UNIT TRUST T/AS CHAPMAN GARDNER PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ASBESTOS REMOVAL ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 25 OCTOBER 2018

Application for approval of the ADENA UNIT TRUST T/As CHAPMAN GARDNER PTY LTD and the CFMEU (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016-2018.

[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) Asbestos Removal Enterprise Agreement 2016-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 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 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 November 2018. The nominal expiry date of the Agreement is 31 October 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the ADENA UNIT TRUST trading as Chapman Gardner Pty Ltd and the CFMEU (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016-2018. The application was heard in the Fair Work Commission (FWC). The main issue before the FWC was whether the agreement met the requirements of the Fair Work Act 2009 for approval, particularly whether it complied with the "better off overall test" (BOOT) under section 234 of the Act.

The FWC considered whether the agreement provided for terms and conditions that were no worse than the applicable awards and provided for a safety net of minimum rates of pay and conditions, including entitlements, leave and maximum weekly hours. The FWC also assessed whether the agreement provided for procedural fairness, including the right of employees to be represented and to be informed and consulted about the enterprise’s financial circumstances. The FWC found that the agreement met the BOOT, as it provided for minimum rates of pay and conditions that were no worse than the applicable awards and provided for procedural fairness. The FWC noted that the agreement also provided for additional benefits such as a higher rate of pay for weekend work and additional leave provisions.

The FWC approved the agreement, subject to certain conditions, including a requirement that the employer provide the CFMEU with access to the enterprise’s financial records on an annual basis. The CFMEU and the employer were directed to take all reasonable steps to give effect to the agreement.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established