Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 4459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/5192)

ZENITH WORX PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 DECEMBER 2022

Application for approval of the Zenith Worx Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a greenfields agreement known as the Zenith Worx Pty Ltd / CFMEU Collective Agreement 2019-2023 (the Agreement). The application was made by the 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 the 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 the 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 28 December 2022. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for the approval of a collective agreement between Zenith Worx Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019-2023. The primary concern was whether the agreement met the criteria set out in the Fair Work Act 2009 for approval, particularly in terms of meeting the better-off-overall test and the procedural fairness of the agreement's creation.

The court had to determine whether the agreement achieved a balance that was no worse than the relevant award and provided better conditions for the employees, as well as whether the union had adequately represented its members in the negotiation process. Additionally, the court had to assess if the agreement's provisions were clear and comprehensible, and if the negotiation process was conducted in good faith by both parties.

The Commission found that the agreement met the better-off-overall test and was fair and reasonable. It concluded that the agreement provided employees with improved conditions compared to the relevant award and that the negotiation process was conducted in good faith. The Commission also found that the union had adequately represented its members in the negotiation process and that the agreement's provisions were clear and comprehensible. Therefore, the Commission approved the collective agreement, finding that it met the criteria set out in the Fair Work Act 2009.

No further orders were made by the Commission, as the approval of the collective agreement was the primary outcome of the application. The decision sets a precedent for similar agreements in the future, highlighting the importance of meeting the better-off-overall test and ensuring procedural fairness in the negotiation process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established