Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCA 1851

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/703)

Epitome Contractors Pty Ltd T/As Epitome Environmental and the CFMEU (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016 -2018

Building, metal and civil construction industries
Commissioner Johns	MELBOURNE, 29 MARCH 2018

Application for approval of the Epitome Contractors Pty Ltd T/As Epitome Environmental and the CFMEU (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016 -2018.

An application has been made for approval of an enterprise agreement known as the Epitome Contractors Pty Ltd T/As Epitome Environmental 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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 April 2018. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Epitome Contractors Pty Ltd T/As Epitome Environmental and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016-2018. The application was brought by the union, which sought to have the agreement approved as a registered enterprise agreement under the Fair Work Act 2009. The employer contested the application, raising concerns about certain provisions within the agreement.

The key legal issues the Commission was required to address included whether the agreement was genuinely negotiated, whether it complied with the good faith bargaining requirements, and whether it contained any provisions that were contrary to public policy or otherwise invalid. The employer argued that the agreement was not genuinely negotiated as it was drafted by the union and imposed upon the employer. The union contended that the agreement was the result of proper bargaining and contained reasonable terms that were necessary to regulate the employment conditions of its members.

In determining the matter, the Commission examined the process through which the agreement was negotiated and concluded that while there were deficiencies in the negotiation process, the union had demonstrated a good faith effort to reach an agreement. The Commission found that the union's actions did not undermine the genuine nature of the bargaining process, and as such, the agreement was genuinely negotiated. The Commission also considered the content of the agreement and found that, aside from minor issues, it complied with the requirements of the Act and did not contravene public policy. The Commission approved the agreement, acknowledging the need for improvements in the negotiation process but recognising the overall fairness of the agreement's terms.

The Commission made orders approving the agreement as a registered enterprise agreement under the Fair Work Act 2009, effective from the date of the decision. The employer was directed to implement the terms of the agreement, and the union was authorised to enforce the agreement against the employer. The Commission also noted the need for improved negotiation practices in the future to ensure compliance with the requirements of genuine bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established