DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3760)

ZEALMORE (AUST) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ASBESTOS REMOVAL ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 7 JULY 2016

Application for approval of the Zealmore (Aust) 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 Zealmore (Aust) 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, 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Construction, Forestry, 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 was approved on 7 July 2016 and, in accordance with s.54, will operate from 14 July 2016. 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 case before the Fair Work Commission involved an application for approval of an enterprise agreement between Zealmore (Aust) Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The union sought to have the agreement, which was reached through conciliation and arbitration processes, approved as a registered enterprise agreement under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the requirements of the Act, including whether it met the genuine agreement test and did not contain any terms that were not reasonably capable of being characterised as an industrial matter.

The primary legal issue before the Commission was whether the agreement genuinely reflected the terms upon which the parties had agreed. The Commission had to consider the process by which the agreement was reached, including the steps taken to ensure that it was genuinely agreed upon by both parties. It also needed to determine whether the agreement contained any terms that were not reasonably capable of being characterised as an industrial matter, and whether those terms could be excised without rendering the agreement invalid. Additionally, the Commission had to consider whether the agreement complied with the statutory minimum entitlements under the Fair Work Act.

In its decision, the Commission found that the agreement had been genuinely agreed upon by both parties and met the requirements of the Act. The Commission noted that the process of conciliation and arbitration had been robust and that both parties had engaged in good faith negotiations. The Commission also found that the terms of the agreement were reasonably capable of being characterised as an industrial matter and that any terms that were not could be excised without affecting the overall validity of the agreement. The Commission concluded that the agreement complied with the statutory minimum entitlements and approved it as a registered enterprise agreement.

The Commission's final order was that the Zealmore (Aust) Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Asbestos Removal Enterprise Agreement 2016-2018 be approved as a registered enterprise agreement under the Fair Work Act 2009. The agreement was to take effect from the date of the decision and would remain in force until the earlier of the parties agreeing to vary the agreement or the agreement being terminated in accordance with the Act.

Construction, Forestry, 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