Construction, Forestry, Mining and Energy Union

[2014] FWCA 3978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/6340)

AUTHENTIC TILING PTY LTD AND THE CFMEU TILELAYERS ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 17 JUNE 2014

Application for approval of the Authentic Tiling Pty Ltd and the CFMEU Tilelayers Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Authentic Tiling Pty Ltd and the CFMEU Tilelayers 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, 187 and 188 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 24 June 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 for approval of the Authentic Tiling Pty Ltd and the Construction, Forestry, Mining and Energy Union Tilelayers Enterprise Agreement 2011-2015. The dispute centred on the validity and enforceability of the enterprise agreement, particularly whether it complied with the requirements of the Fair Work Act 2009. The parties to the agreement were Authentic Tiling Pty Ltd and the Construction, Forestry, Mining and Energy Union.

The legal issues before the court encompassed whether the enterprise agreement had been fairly and genuinely negotiated, and whether it met the requirements for approval under the Fair Work Act. This included an examination of whether the agreement was made in good faith and whether it contained the necessary provisions for the protection of employees. Additionally, the court had to determine if the agreement adhered to the provisions regarding pay and conditions for employees covered by the agreement.

The Full Bench of the Fair Work Commission found that the enterprise agreement was not fairly and genuinely negotiated and did not meet the necessary standards for approval. The court highlighted that the agreement did not sufficiently protect the interests of the employees and contained provisions that were not in line with the protections outlined in the Fair Work Act. Consequently, the application for approval of the agreement was dismissed. The Full Bench ordered that the agreement be returned to the parties for amendment and renegotiation in accordance with the requirements of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established