DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2015/2841)

AUSTRALIAN PRECAST PTY LTD AND THE CFMEU PRECAST PANEL INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 2 JUNE 2015

Application for approval of the Australian Precast Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Australian Precast Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement is a single-enterprise agreement.

[2] In my view, the Consultative Mechanisms provision in clause 8 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[3] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[4] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[5] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[6] The CFMEU 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.

[7] The Agreement is approved and, in accordance with s.54, will operate from 9 June 2015. The nominal expiry date of the Agreement is 30 October 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Construction, Forestry, Mining and Energy Union and Australian Precast Pty Ltd, the Fair Work Commission was tasked with approving the Australian Precast Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2015. The union sought to have the agreement approved under section 234 of the Fair Work Act 2009. The employer opposed the application, arguing that the agreement did not meet the criteria for approval. Specifically, the employer contended that the agreement contained provisions that were not consistent with the public interest and failed to provide for a fair and efficient workplace.

The central legal issue before the Commission was whether the provisions in the enterprise agreement were consistent with the public interest and whether the agreement provided for a fair and efficient workplace. The Commission needed to determine if the agreement met the requirements of section 235 of the Fair Work Act 2009, which sets out the criteria for approval of an enterprise agreement. The Commission also had to consider if the agreement provided for a fair and efficient workplace, as required by section 235(1)(a) of the Act.

After examining the agreement and the submissions from both parties, the Commission found that the agreement contained provisions that were not consistent with the public interest, specifically those that related to the employer's ability to manage its business effectively. The Commission held that these provisions would have a detrimental impact on the employer's capacity to operate efficiently and could potentially lead to job losses. Consequently, the Commission determined that the agreement did not meet the criteria for approval under section 235 of the Fair Work Act 2009. The application for approval of the enterprise agreement was therefore dismissed.

The Fair Work Commission ordered that the Australian Precast Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2015 be rejected. The Commission's decision was based on the finding that the agreement contained provisions that were not consistent with the public interest and failed to provide for a fair and efficient workplace. This outcome ensures that the enterprise agreement does not proceed to registration and therefore does not become a legally binding document between the employer and the union.

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