Ace Civil Services Pty Ltd

[2016] FWCA 2327

DECISION

Fair Work Act 2009
s.185—Enterprise agreement
Ace Civil Services Pty Ltd
(AG2016/2439)
CFMEU ACE CIVIL SERVICES MOBILE PLANT AND
EARTHWORKS ENTERPRISE AGREEMENT 2016
Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 13 APRIL 2016

Application for approval of the CFMEU ACE CIVIL SERVICES Mobile Plant & Earthworks

Enterprise Agreement 2016.

[1] An application has been made for approval of a greenfields agreement known as the

CFMEU ACE CIVIL SERVICES Mobile Plant & Earthworks Enterprise Agreement 2016

(Agreement). The application was made by Ace Civil Services Pty Ltd pursuant to s.185 of

the Fair Work Act 2009 (Act).

[2] 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 Construction, Forestry, Mining and Energy Union are 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.

[3] On reviewing the application the Commission noted that the Notice of Termination

provision in sub clause 2.10(iv) of the proposed Agreement do not apply to apprentices. The

Applicant subsequently agreed in response to provide the attached undertaking. It will now be

taken to be a term of the Agreement.

[4] It was also noted that the Consultation term in clause 7 of the Agreement does not

specifically provide for consultation about a change to the employees’ regular roster or

ordinary hours of work, as required by s.205(1A) of the Act. The Commission advised the

Applicant, in response, that the model consultation term would therefore be taken to be a term

of the Agreement.

[5] However, the Commission subsequently received correspondence from the Mining

and Energy Division of the CFMEU, who are a bargaining representative for the proposed

Agreement. It acknowledged in that correspondence that if the Commission finds an
[2016] FWCA 2327

Agreement does not include a consultation clause, which satisfies the requirements of s.205,

then the Act requires that the model consultation term be taken to be a term of the Agreement.

[6] However, it continued to submit that this does not mean that the model clause should

act to replace existing clause 7 in the Agreement. It submits instead that the Agreement

should simply now contain the consultation obligations set out in the model consultation term,

together with those otherwise contained in clause 7. It continues to submit that this approach

is consistent with previous decisions of the Commission, including those in Yarra Plenty

Regional Library Service Enterprise Agreement 2015 – 2018 [2015] FWC 6313 at paragraph

9, and Metro Asphalt Pty Ltd and the AWU Victorian Asphalt Agreement 2015 to 2016 [2015]

FWCA 8048 at paragraph 3.

[7] I have reviewed those decisions and agree that this is the appropriate approach. The

consultation obligations in the Agreement will therefore be those contained in clause 7,

together with those contained in the model term which I note, as required by s.201(1), is now

taken to be a term of the Agreement.

[8] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the

Construction, Forestry, Mining and Energy Union and that the Agreement covers the

organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from

20 April 2016. The nominal expiry date of the Agreement is 1 January 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

[2016] FWCA 2327

ANNEXURE A

The case involved an application by Ace Civil Services Pty Ltd for approval of the CFMEU ACE CIVIL SERVICES Mobile Plant & Earthworks Enterprise Agreement 2016. The applicant sought approval under section 185 of the Fair Work Act 2009. The agreement was a greenfields agreement and was subject to the requirements of section 172(2)(b) of the Act. The applicant was represented by the Construction, Forestry, Mining and Energy Union, who were entitled to represent the industrial interests of a majority of employees who would be covered by the agreement.

The primary legal issue before the Commissioner was whether the agreement met the requirements of the Fair Work Act 2009, specifically sections 185, 186, and 187. The Commissioner had to determine if the agreement was in the public interest and if the union was entitled to represent the employees. Additionally, the Commissioner had to consider whether the agreement adequately met the consultation requirements of section 205(1A) of the Act.

The Commissioner found that the agreement met all relevant requirements of the Act. The Commissioner was satisfied that the union was entitled to represent the employees and that the agreement was in the public interest. The Commissioner also noted that the agreement did not specifically provide for consultation about changes to employees’ regular roster or ordinary hours of work, as required by section 205(1A) of the Act. However, the Commissioner agreed with the union's submission that the model consultation term should be incorporated into the existing consultation clause rather than replacing it. The Commissioner approved the agreement, which will operate from 20 April 2016 and expire on 1 January 2018.

The Commissioner's final order was that the CFMEU ACE CIVIL SERVICES Mobile Plant & Earthworks Enterprise Agreement 2016 is approved and will operate from 20 April 2016, with a nominal expiry date of 1 January 2018. The agreement includes the model consultation term as an additional term to the existing consultation clause.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established