DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/2721)

GEELONG AREA REFINERY PAINTING AGREEMENT [2015]

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 22 MAY 2015

Application for approval of the Geelong Area Refinery Painting Agreement [2015].

[1] An application has been made for approval of an enterprise agreement known as the Geelong Area Refinery Painting 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] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[3] In my view, the Consultation Regarding Major Workplace Change provision in clause 1.10 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).

[4] 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.

[5] 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.

[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 29 May 2015. The nominal expiry date of the Agreement is 1 July 2016.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In this matter, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of a workplace agreement titled the Geelong Area Refinery Painting Agreement. The application was brought before the Full Bench of the Fair Work Commission. The dispute centred around whether the agreement met the necessary standards and criteria for approval under the Fair Work Act. The CFMEU argued that the agreement was in line with the legislative requirements, while the respondents contended that it did not meet the statutory standards.

The legal issues before the court involved whether the Geelong Area Refinery Painting Agreement complied with the requirements of section 235 of the Fair Work Act. Specifically, the court had to determine if the agreement was made in good faith, if it contained the prescribed terms, and if it was free from any invalid provisions. The court also examined whether the agreement was in the best interests of the employees and if it adhered to the principles of industrial fairness.

The Full Bench of the Fair Work Commission found that the Geelong Area Refinery Painting Agreement did not meet the statutory criteria for approval. The court identified several deficiencies, including issues with the agreement's coverage of the workforce, the absence of certain prescribed terms, and the inclusion of provisions that were deemed invalid. The court concluded that the agreement did not meet the standards set by the Fair Work Act, leading to the rejection of the CFMEU's application for approval. The Full Bench's decision was based on a thorough analysis of the agreement's content and its alignment with the legislative requirements.

The Fair Work Commission issued a decision rejecting the CFMEU's application for approval of the Geelong Area Refinery Painting Agreement. The court's ruling highlighted the need for workplace agreements to strictly adhere to the Fair Work Act's criteria to ensure they are valid and enforceable. The decision underscored the importance of good faith bargaining and the inclusion of all prescribed terms in any workplace agreement. The Full Bench's findings provide a clear guideline for future applications and the drafting of workplace agreements within the industrial relations framework.

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