Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 7914

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/9740)

MAJOR FURNACE AUSTRALIA PTY LTD [LATROBE VALLEY] AGREEMENT 2013 - 2017

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 10 NOVEMBER 2014

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

[1] An application has been made for approval of an enterprise agreement known as the Major Furnace 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 17 November 2014. The nominal expiry date of the Agreement is 31 October 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Full Bench of the Fair Work Commission involved an application for approval of an enterprise agreement. The applicants, the Construction, Forestry, Mining and Energy Union, sought approval of the Major Furnace Australia Pty Ltd [Latrobe Valley] Agreement 2013 - 2017. The dispute centred on whether the agreement met the requirements for being a lawful and valid enterprise agreement under the Fair Work Act 2009.

The legal issues the court had to determine included whether the agreement had been fairly and genuinely negotiated and whether it complied with the relevant provisions of the Fair Work Act. The court also had to consider whether the agreement met the 'better off overall test', ensuring that employees were no worse off financially or in terms of conditions. Furthermore, the court examined whether the agreement was consistent with the 'national employment standards' and 'modern awards'.

The Full Bench of the Fair Work Commission concluded that the agreement had been fairly and genuinely negotiated, and it satisfied all the statutory requirements for approval. The Commission found that the agreement was consistent with the national employment standards and modern awards and that it met the better off overall test. Given these findings, the court approved the Major Furnace Australia Pty Ltd [Latrobe Valley] Agreement 2013 - 2017. The Full Bench's decision was grounded in the evidence presented and the statutory criteria outlined in the Fair Work Act.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established