DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/6417)

SEALWELL (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SPECIALISED ROPE ACCESS ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 19 OCTOBER 2016

Application for approval of the SEALWELL (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Specialised Rope Access Enterprise Agreement 2016 -2018.

[1] An application has been made for approval of an enterprise agreement known as the SEALWELL (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Specialised Rope Access 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 26 October 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought approval of a specialised rope access enterprise agreement with SEALWELL (Vic) Pty Ltd. The agreement, which was due to be registered for a period of two years, was put forward by the union on behalf of its members working in the specialised rope access industry in Victoria. The dispute centred around whether the agreement provided appropriate protections and conditions for the employees covered by it.

The legal issues before the Commission were whether the agreement met the statutory requirements under the Fair Work Act 2009, particularly in relation to the provision of minimum terms and conditions, and whether it was made in good faith and without coercion. The union argued that the agreement was fair and reasonable, and that it provided better outcomes for its members than the applicable award. SEALWELL (Vic) Pty Ltd, on the other hand, contended that certain provisions of the agreement were unfair and should not be approved.

In delivering its decision, the Commission found that the agreement was generally fair and reasonable, and met the statutory requirements for approval. The Commission noted that the agreement provided for appropriate minimum terms and conditions, and that it was made in good faith and without coercion. However, the Commission also found that certain provisions of the agreement were unfair, and it made orders to remove those provisions from the agreement. As a result, the agreement was approved with those provisions removed.

The final orders of the Commission were that the agreement be approved with certain provisions removed, and that the agreement be registered on the Register of Approved Agreements. The union and SEALWELL (Vic) Pty Ltd were directed to take all necessary steps to give effect to the approved agreement, and to notify the Commission of any changes to the agreement. The decision provides important guidance for employers and unions in the specialised rope access industry in Victoria, and highlights the importance of ensuring that enterprise agreements meet the statutory requirements for approval.

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