Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 6239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/8882)

PACIFIC HIRE MANSFIELD PTY LTD AND THE CFMEU CONTRACT SCAFFOLD ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 9 SEPTEMBER 2014

Application for approval of the Pacific Hire Mansfield Pty Ltd and the CFMEU Contract Scaffold Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Pacific Hire Mansfield Pty Ltd and the CFMEU Contract Scaffold 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 16 September 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 matter before the Full Bench of the Fair Work Commission involved an application by Pacific Hire Mansfield Pty Ltd for approval of the CFMEU Contract Scaffold Enterprise Agreement 2011-2015. The dispute centred on whether the agreement was appropriate for the workers it sought to cover, given the specific conditions and operations of the scaffolding industry. The application was heard and determined by the Full Bench of the Fair Work Commission, which was tasked with assessing the fairness and suitability of the proposed agreement.

The key legal issues before the court involved whether the agreement met the criteria for approval under the Fair Work Act 2009. This included whether the agreement covered employees and employers, whether the agreement was made in good faith and whether it was consistent with the principles of the Fair Work Act. The court also had to consider the impact of the agreement on the workers it was intended to cover, including whether it provided for fair and reasonable terms and conditions of employment.

The Full Bench of the Fair Work Commission found that the agreement did not meet the criteria for approval. The court determined that the agreement was not appropriate for the workers it sought to cover, given the specific conditions and operations of the scaffolding industry. The court found that the agreement did not provide for fair and reasonable terms and conditions of employment, and that it was not made in good faith. The court also found that the agreement was inconsistent with the principles of the Fair Work Act. As a result, the application for approval of the agreement was dismissed.

The Full Bench of the Fair Work Commission dismissed the application for approval of the agreement. The court found that the agreement did not meet the criteria for approval under the Fair Work Act 2009, and that it was not appropriate for the workers it sought to cover. The court's decision provides guidance for employers and unions in the scaffolding industry when negotiating and finalising enterprise agreements.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established