DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/10772)

RAVEN SCAFFOLDS PTY LTD AND THE CFMEU SCAFFOLD YARD ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 17 DECEMBER 2014

Application for approval of the Raven Scaffolds 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 Raven Scaffolds 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 24 December 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union brought an application for approval of the Raven Scaffolds Pty Ltd and the CFMEU Scaffold Yard Enterprise Agreement 2011-2015. The respondent, Raven Scaffolds Pty Ltd, opposed the application on the basis that the agreement did not meet the "better off overall test" as it did not provide sufficient protection against the adverse effects of technological change.

The legal issue before the Commission was whether the agreement provided employees with adequate protection against the adverse effects of technological change. The Commission considered whether the agreement provided a "genuine safety net" for employees who may be adversely affected by technological change, as required by the Fair Work Act. The Commission also considered whether the agreement provided adequate protection against the adverse effects of technological change in terms of job security, redundancy payments, and retraining opportunities.

The Commission found that the agreement did provide a genuine safety net for employees who may be adversely affected by technological change. The agreement provided for job security, redundancy payments, and retraining opportunities, which the Commission considered to be adequate protection against the adverse effects of technological change. The Commission also found that the agreement provided for a fair and reasonable process for employees to access retraining opportunities, which was an important factor in meeting the better off overall test. The Commission approved the agreement, finding that it met the better off overall test.

The Commission made an order approving the Raven Scaffolds Pty Ltd and the CFMEU Scaffold Yard Enterprise Agreement 2011-2015. The order was made on the basis that the agreement met the better off overall test and provided adequate protection against the adverse effects of technological change.

Construction, Forestry, Mining and Energy Union

DECISION

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Background to the litigation

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Legal Principle Established