DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/10784)

LUNA PARK MELBOURNE MAINTENANCE AGREEMENT 2013-2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 DECEMBER 2014

Application for approval of the Luna Park Melbourne Maintenance Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Luna Park Melbourne Maintenance Agreement 2013-2016 (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 provisions in clauses 15 and 16 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 and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

[7] The Agreement is approved and, in accordance with s.54, will operate from 25 December 2014. The nominal expiry date of the Agreement is 30 June 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of the Luna Park Melbourne Maintenance Agreement 2013-2016, as it had been entered into by the employer, Luna Park Melbourne Pty Ltd, and the union in accordance with the relevant provisions of the Fair Work Act 2009. The employer sought to have the application dismissed on the basis that the union had not been appropriately certified as a bargaining representative and that the agreement was not genuinely intended to be an enterprise agreement. The commission was required to determine whether the union had been appropriately certified as a bargaining representative and whether the agreement was genuinely intended to be an enterprise agreement.

The commission found that the union had been appropriately certified as a bargaining representative and that the agreement was genuinely intended to be an enterprise agreement. The employer had failed to discharge the onus of proving otherwise. The commission held that the union had been appropriately certified as a bargaining representative for the purposes of the agreement and that the agreement was genuinely intended to be an enterprise agreement, as it contained a mix of genuine enterprise issues and other matters. The commission also found that the agreement had been entered into in good faith, and that there was no evidence of any improper conduct on the part of the union.

Accordingly, the commission approved the agreement as a registered agreement. The employer was ordered to give written notice of the approval to the union and to take all necessary steps to give effect to the agreement. The union was ordered to give written notice of the approval to the employees and to take all necessary steps to give effect to the agreement. The parties were ordered to endeavour in good faith to resolve any issues that might arise in relation to the operation or interpretation of the agreement.

Construction, Forestry, Mining and Energy Union

DECISION

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