DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/10767)

BURNS CRANES AUSTRALIA PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Burns Cranes Australia 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 Burns Cranes Australia 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 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 30 June 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for approval of the Burns Cranes Australia Pty Ltd and the Construction, Forestry, Mining and Energy Union Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. The dispute centred around the union's application for the agreement to be approved as a registered agreement under the Fair Work Act 2009. The court had to decide whether the application met the criteria for approval as outlined in the Act.

The legal issues the court needed to address included whether the agreement was genuinely an enterprise agreement, whether the union had sufficient representation among the employees, and if the agreement had been made in good faith and without coercion. The court had to examine the process followed to develop the agreement and determine if it was compliant with the legislative requirements. Additionally, the court assessed whether the agreement contained all the mandatory terms prescribed by the Fair Work Act.

The court found that the agreement was genuinely an enterprise agreement, as it was made by an eligible organisation, the union, and covered employees within its registered scope. The court was satisfied that the union had adequate representation among the employees, and the process of developing the agreement was in good faith and free from coercion. The court noted that while there were some procedural irregularities, they did not affect the overall validity of the agreement. Consequently, the court approved the agreement, confirming it met all the necessary criteria for registration under the Fair Work Act 2009.

The final orders of the court were that the Burns Cranes Australia Pty Ltd and the Construction, Forestry, Mining and Energy Union Mobile Crane Hiring Industry Enterprise Agreement 2011-2015 be approved and registered as a registered agreement under the Fair Work Act 2009. The court's decision ensured that the agreement would now have legal effect, governing the employment terms and conditions of the employees covered by the agreement.

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