DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/2328)

CFMEU O&M SCAFFOLDING POWER INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 14 APRIL 2015

Application for approval of the CFMEU O&M Scaffolding Power Industry Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the CFMEU O&M Scaffolding Power 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] 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 provision in clause 34 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 21 April 2015. The nominal expiry date of the Agreement is 31 March 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of the CFMEU O&M Scaffolding Power Industry Enterprise Agreement 2015. The application was opposed by Powercor Australia Limited, which argued that the agreement was not appropriate for approval as it failed to meet the coverage test as outlined in the Fair Work Act 2009. The key legal issues before the Commission were whether the agreement was made between a certified union and an employer, and whether it was made in the course of negotiations in good faith.

The Commission found that the agreement had been made between the union and the employer and that it was made in the course of negotiations in good faith. The Commission noted that the union had provided evidence of its representative capacity, including a resolution passed by the union’s national executive authorising the negotiations. The employer, on the other hand, had not provided any evidence to suggest that the union did not have representative capacity. The Commission found that the agreement was therefore appropriately certified as it was made between a certified union and an employer and in the course of negotiations in good faith.

In light of the above findings, the Commission approved the agreement. The employer’s objections to the agreement were dismissed, and the application for approval was granted. The Commission made orders that the agreement be approved as a modern award with effect from the date of the application.

Construction, Forestry, Mining and Energy Union

DECISION

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