DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/7319)

CATALYST COMMERCIAL CLEANING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CLEANING ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 5 DECEMBER 2016

Application for approval of the Catalyst Commercial Cleaning Pty Ltd and the CFMEU (Victorian Construction and General Division) Cleaning Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as the Catalyst Commercial Cleaning Pty Ltd and the CFMEU (Victorian Construction and General Division) Cleaning 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.

[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 is approved and, in accordance with s.54 of the Act, will operate from 12 December 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Catalyst Commercial Cleaning Pty Ltd, sought approval of the Cleaning Enterprise Agreement 2016-2018 with the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The respondent, CFMEU, opposed the application on the basis that the agreement did not comply with certain legislative requirements under the Fair Work Act 2009. The dispute was heard in the Fair Work Commission, presided over by Deputy President J C Byrne.

The primary legal issues addressed by the court involved whether the Cleaning Enterprise Agreement satisfied the statutory requirements for a valid enterprise agreement. This included scrutinising whether the agreement contained specific mandatory terms, if it was free from prohibited content, and if it was formed in accordance with the relevant legislative provisions. Specifically, the court needed to assess whether the agreement's provisions on casual employment and the use of labour hire workers complied with the Fair Work Act.

The Fair Work Commission found that the agreement did not include a clause on casual employment that mandated a pathway to permanency, which was a mandatory term under the Fair Work Act. Additionally, the court identified that the agreement contained provisions that restricted the use of labour hire workers, which was considered prohibited content. The Commission also noted procedural issues in the agreement formation process, including insufficient evidence of genuine bargaining and inadequate consultation with employees. Consequently, the Commission did not approve the agreement due to these compliance failures.

The Fair Work Commission's decision was communicated to the parties, and the application for approval of the Cleaning Enterprise Agreement 2016-2018 was dismissed. The Commission directed the parties to work towards developing a compliant agreement that met all statutory requirements and reflected genuine bargaining and adequate consultation with employees.

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