DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/10930)

STILCON SCAFFOLDING PTY LTD AND THE CFMEU SCAFFOLD YARD ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 8 JANUARY 2015

Application for approval of the Stilcon Scaffolding Pty Ltd and the CFMEU Scaffold Yard Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Stilcon Scaffolding Pty Ltd and the CFMEU Scaffold Yard 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 Consultation 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 15 January 2015. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application with the Fair Work Commission seeking approval for the Stilcon Scaffolding Pty Ltd and the CFMEU Scaffold Yard Enterprise Agreement 2011-2015 (the Agreement). This agreement, being a single-enterprise agreement, was made under section 185 of the Fair Work Act 2009. The Agreement, which was to operate from 15 January 2015 until 31 March 2015, was proposed by the CFMEU, which was also a bargaining representative of the Agreement and had given notice under section 183 of the Act that it wanted the Agreement to cover it. The primary legal issues that the Senior Deputy President had to decide were whether the Agreement met the requirements of sections 186 and 187 of the Act, and whether the Agreement included the necessary consultation terms about changes to an employee’s regular roster or ordinary hours of work.

In determining these issues, the Senior Deputy President concluded that the Agreement met the requirements of sections 186 and 187 of the Act, as it was a single-enterprise agreement. However, the Consultation Mechanisms provision in clause 8 of the Agreement did not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced 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. As such, the model consultation term found in Schedule 2.3 of the Fair Work Regulations 2009 was taken to be a term of the Agreement under section 205(2) of the Act. The Senior Deputy President concluded that the Agreement was approved, and in accordance with section 54, it would operate from 15 January 2015. The nominal expiry date of the Agreement is 31 March 2015.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

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Legal Principle Established