DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/2716)

CAPSALIS TRUST & RICHARDS TRUST T/AS RIGWELD CRANE HIRE PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 19 MAY 2015

Application for approval of the Capsalis Trust & Richards Trust T/As Rigweld Crane Hire Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Capsalis Trust & Richards Trust T/As Rigweld Crane Hire Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015 (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 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).

[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 26 May 2015. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Capsalis Trust & Richards Trust T/As Rigweld Crane Hire Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. The application came before the Commission in proceedings initiated by the CFMEU. The dispute concerned the terms and conditions of employment for mobile crane operators within the industry. The Fair Work Commission was tasked with determining whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues revolved around whether the agreement provided for fair and reasonable terms and conditions, including provisions on pay rates, working hours, leave entitlements, and other employment-related matters. The Commission had to assess whether the agreement was consistent with the objectives of the Fair Work Act, which includes promoting high wages and conditions and ensuring flexibility in the workplace. The CFMEU argued that the agreement was fair and reasonable, while opposing parties contended that certain provisions were not in line with the statutory objectives.

The Fair Work Commission, after careful consideration of the arguments and the provisions of the agreement, determined that the majority of the agreement was fair and reasonable. The Commission found that while some provisions could be improved, they did not significantly detract from the overall fairness of the agreement. The Commission approved the agreement with certain modifications to address the identified concerns. The decision was made in light of the need to balance the interests of both employers and employees within the industry.

The final orders of the Commission included the approval of the agreement with specific amendments to certain clauses, ensuring they met the legal standards required under the Fair Work Act. The modifications were intended to enhance fairness and maintain the integrity of the agreement. The Commission's decision upheld the importance of enterprise agreements in setting terms and conditions that reflect the needs of the industry while safeguarding the rights of workers.

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