Construction, Forestry, Mining and Energy Union

[2014] FWCA 7363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/9388)

SIRRAH 163 TRUST (THE TRUSTEE FOR) T/AS EARTHBOLT VIC PTY LTD AND THE CFMEU PILING ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 20 OCTOBER 2014

Application for approval of the Sirrah 163 Trust (The Trustee for) T/As Earthbolt Vic Pty Ltd and the CFMEU Piling Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Sirrah 163 Trust (The Trustee for) T/As Earthbolt Vic Pty Ltd and the CFMEU Piling 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 27 October 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Sirrah 163 Trust (The Trustee for) T/As Earthbolt Vic Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFME) were involved in a dispute regarding the approval of the CFMEU Piling Enterprise Agreement 2011-2015. The matter was heard in the Fair Work Commission. The primary legal issue before the commission was whether the proposed enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the commission had to determine if the agreement provided for fair and reasonable terms and conditions, and if it complied with the procedural requirements set forth in the Act.

The commission assessed the agreement against various legal standards, including whether it included provisions for minimum rates of pay and conditions, and if it adhered to the procedural requirements such as proper bargaining and notice provisions. The commission also considered the fairness and reasonableness of the terms proposed, taking into account the broader economic context and the interests of both employers and employees. Ultimately, the commission found that the agreement met the necessary legal standards and was fair and reasonable. It approved the agreement, acknowledging the balance achieved between the parties' interests and the compliance with statutory requirements.

Consequently, the commission granted approval for the CFMEU Piling Enterprise Agreement 2011-2015. The decision was made on the basis that the agreement was fair and reasonable, and it complied with the legal criteria and procedural requirements. The final order was that the agreement be approved and registered under the Fair Work Act 2009.

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