Construction, Forestry, Mining and Energy Union

[2014] FWCA 7913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/9749)

THE TRUSTEE FOR SJ & TA PHILLIPS FAMILY TRUST T/A SJ & TA STRUCTURAL PTY LTD AND THE CFMEU RIVERINA AND MURRAY REGIONAL AGREEMENT 2011-2015

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

Application for approval of The Trustee for SJ & TA Phillips Family Trust t/a SJ & TA Structural Pty Ltd and the CFMEU Riverina and Murray Regional Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as The Trustee for SJ & TA Phillips Family Trust t/a SJ & TA Structural Pty Ltd and the CFMEU Riverina and Murray Regional 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 Consultative 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 17 November 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Full Bench of the Fair Work Commission involved an application for approval of an enterprise agreement between The Trustee for SJ & TA Phillips Family Trust trading as SJ & TA Structural Pty Ltd and the Construction, Forestry, Mining and Energy Union. The dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009. The Full Bench, comprising of Member J Meagher, Member A Richards, and President R G Harper, was tasked with determining the validity of the agreement.

The primary legal issues before the Full Bench were whether the agreement had been made in accordance with the procedural fairness principles, if the agreement had been made without any improper conduct, and whether the agreement met the criteria for approval as set out in the Fair Work Act. The Full Bench needed to carefully examine the process by which the agreement was made, including the involvement of the parties and any potential coercion or undue influence. Additionally, the Bench had to ensure that the agreement contained the necessary "independent" terms and did not unfairly discriminate against any class of employees.

In reaching its decision, the Full Bench determined that the application for approval of the enterprise agreement should be dismissed. The reasoning was based on procedural flaws in the agreement process. The Full Bench found that the agreement did not meet the requirements for approval as it was not made in accordance with the procedural fairness principles. Specifically, the process by which the agreement was negotiated and finalised did not adequately ensure that the employees had a genuine opportunity to participate in the agreement-making process. This conclusion was based on evidence presented during the hearing, which highlighted deficiencies in the communication and consultation process with the employees.

The Full Bench dismissed the application for approval of the enterprise agreement, effectively invalidating it due to the procedural issues identified. This decision underscored the importance of strict adherence to the statutory requirements for the negotiation and approval of enterprise agreements in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established