Construction, Forestry, Mining and Energy Union

[2015] FWCA 4639

[2015] FWCA 4639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/3159)

CFMEU WORK PLACE COLLECTIVE AGREEMENT 2015 - 2017

Clerical industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2015

Application for approval of the CFMEU Work Place Collective Agreement 2015-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the Construction, Forestry, Mining and Energy Union, NSW Branch (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the CFMEU Work Place Collective Agreement 2015 - 2017 (the ‘Agreement’). The Agreement was negotiated with the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union t/as United Services Union (the ‘Union’) and is to cover 15 employees who are employed in clerical roles by the applicant. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 15 December 2014, and voting for the Agreement’s approval took place on 26 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by a show of hands, 13 of the 15 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms R Mallia, Acting Secretary/President identified the Clerks – Private Sector Award 2010 [MA000002] and the Clerical and Administrative Employees (State) Award [AN120064]as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Malliasaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, and more generous, annual, personal and sick leave entitlements. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 39 and 38 respectively, and a disputes resolution procedure at clause 37 erroneously refers to Fair Work Australia, which I take as providing for conciliation, mediation and arbitration by the Commission.

[4] At a hearing of the application on 7 July 2015, Ms S Redfern and Ms L Charlson appeared for the applicant, Mr E Cole and Mr S Singh for the Union. Ms Charlson outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that rates of pay, which are significantly higher than those under the reference instruments, are to be increased by 6% on 1 January 2016 and 1 January 2017. Mr Cole supported the submissions of Ms Charlson.The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the CFMEU Work Place Collective Agreement 2015 - 2017 Pursuant to s 54 of the Act, the Agreement shall operate from 14 July 2015 and have a nominal expiry date of 31 December 2017.

DEPUTY PRESIDENT

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