Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 4791

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/1609)

S & K COMMERCIAL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 JULY 2014

Application for approval of the S & K Commercial Pty Ltd and CFMEU Union Collective Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the S & K Commercial Pty Ltd and CFMEU Union Collective 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, 187 and 188 as are relevant to this application for approval have been met.

[3] In my view, the Consultation provision in clause 33 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 25 July 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of a collective agreement between itself and S & K Commercial Pty Ltd. The Fair Work Commission heard the application and was required to decide whether the agreement met the statutory requirements for approval. The agreement contained provisions concerning minimum working conditions, including hours of work, overtime, allowances, and rest breaks. The employer argued that certain provisions exceeded the scope of a greenfields agreement and were invalid. The CFMEU countered that the provisions were necessary to ensure fair and reasonable terms of employment.

The Commission found that some provisions in the agreement went beyond the scope of a greenfields agreement and were invalid. However, the invalid provisions did not render the entire agreement unenforceable. The Commission exercised its discretion under section 233 of the Fair Work Act 2009 to approve the agreement with the invalid provisions removed. The CFMEU was ordered to notify the employer of the invalid provisions and to remove them from the agreement. The employer was ordered to pay the CFMEU's costs of the application.

Construction, Forestry, Mining and Energy Union

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