Construction, Forestry, Mining and Energy Union

[2014] FWCA 5269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/8470)

HIGHRIG CRANES PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 AUGUST 2014

Application for approval of the Highrig Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Highrig Cranes Pty Ltd and the CFMEU Mobile Crane Hiring 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] 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 12 August 2014. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application for approval of the Highrig Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. This agreement pertains to a range of terms and conditions affecting employees who operate mobile cranes in the industry. The application came before the Commission, which was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement was a "better off overall test" (BOOT) compliant enterprise agreement. This required the Commission to assess if the agreement provided employees with a minimum total pay and conditions package that was at least as good as the relevant award or any other applicable agreements. The Commission had to consider various aspects of the agreement, including wages, allowances, and other employment conditions, against the backdrop of the applicable awards.

Upon reviewing the evidence and submissions from both parties, the Commission found that the agreement did meet the BOOT. The Commission noted that the proposed agreement provided employees with a package that was at least as good as the Mobile Crane Hiring Industry Award 2010. It included provisions for wages, allowances, and conditions that were on par with or better than the award. The Commission was satisfied that the agreement would not disadvantage employees and was in compliance with the statutory requirements for approval.

Consequently, the Commission approved the Highrig Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015, affirming that it met the necessary criteria for a BOOT compliant agreement. This decision was made on the basis that the agreement provided a fair and reasonable total pay and conditions package for the employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established