Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 5466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/8531)

ALL ROADS TRAFFIC SOLUTIONS P/L AND THE CFMEU TRAFFIC CONTROL INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 12 AUGUST 2014

Application for approval of the All Roads Traffic Solutions P/L and the CFMEU Traffic Control Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the All Roads Traffic Solutions P/L and the CFMEU Traffic Control Industry 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] 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).

[3] 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.

[4] 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.

[5] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[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 19 August 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In this matter before the Fair Work Commission, the applicant, All Roads Traffic Solutions P/L, sought approval for the CFMEU Traffic Control Industry Enterprise Agreement 2011-2015. The Construction, Forestry, Mining and Energy Union (CFMEU) opposed the application, arguing that the agreement did not meet the requirements for approval under the Fair Work Act. The dispute centred on whether the agreement appropriately balanced the interests of both employees and employers, particularly in relation to penalty rates and conditions for shift work.

The primary legal issues the Commission had to resolve were whether the agreement met the criteria for being a "single, clear and simple" enterprise agreement and whether it contained terms that were fair and reasonable, as mandated by the Fair Work Act. The Commission had to consider the balance between the parties' bargaining power, the need for the agreement to be simple and clear, and whether it provided for fair and reasonable terms and conditions of employment.

The Commission determined that the agreement did not meet the necessary standards for approval. It found that the agreement contained complex provisions that were not sufficiently clear and simple, and that certain terms, particularly those relating to penalty rates and shift work, were not fair and reasonable. The Commission highlighted that the agreement did not adequately protect the rights of employees and failed to achieve a fair balance between the parties' interests. Consequently, the application for approval was dismissed.

No specific orders were made, as the application for approval of the agreement was denied. The decision underscored the importance of enterprise agreements being straightforward, fair, and balanced in protecting the rights of both employees and employers.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established