Construction, Forestry, Mining and Energy Union

[2014] FWCA 8504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/9986)

REFRACTORY INSTALLATIONS AUSTRALIA PTY LTD [LATROBE VALLEY] AGREEMENT 2013 - 2017

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 28 NOVEMBER 2014

Application for approval of the Refractory Installations Australia Pty Ltd [Latrobe Valley] Agreement 2013 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Refractory Installations Australia Pty Ltd [Latrobe Valley] Agreement 2013 - 2017 (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 on Major Workplace Change provision in clause 30 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 5 December 2014. The nominal expiry date of the Agreement is 31 October 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in this case are the Construction, Forestry, Mining and Energy Union and Refractory Installations Australia Pty Ltd. The matter before the court was an application for the approval of an enterprise agreement made between the union and the company for the years 2013 to 2017. The application was brought before the Fair Work Commission, the tribunal responsible for regulating and approving enterprise agreements in Australia. The legal issues the court was required to decide centred around whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. This included examining if the agreement was made in good faith, provided for a fair and reasonable method of determining employees' terms and conditions, and did not discriminate against employees or groups of employees. The court's reasoning and outcome involved a detailed examination of the agreement's provisions and the process through which it was made. The tribunal found that the agreement was made in good faith and provided for a fair and reasonable method of determining employees' terms and conditions. Furthermore, it did not contain any provisions that would discriminate against any employee or group of employees. Consequently, the tribunal approved the application and granted the requested approval for the agreement. This decision was based on the tribunal's assessment that the agreement met all the necessary criteria for approval under the Fair Work Act 2009.

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