Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 3544

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/6166)

BRETT WALTERS FAMILY TRUST (THE TRUSTEE FOR) T/AS SEALWELL PTY LTD AND THE CFMEU SPECIALISED ROPE ACCESS ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 28 MAY 2014

Application for approval of the Brett Walters Family Trust (The Trustee for) T/As Sealwell Pty Ltd and the CFMEU Specialised Rope Access Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Brett Walters Family Trust (The Trustee for) T/As Sealwell Pty Ltd and the CFMEU Specialised Rope Access 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. 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 4 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 Fair Work Commission involved an application for approval of an enterprise agreement between the Brett Walters Family Trust, trading as Sealwell Pty Ltd, and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred on whether the proposed Specialised Rope Access Enterprise Agreement 2011-2015 complied with the statutory requirements under the Fair Work Act 2009. The Commission was tasked with ensuring that the agreement was fair and lawful, and that it met the necessary criteria for approval.

The key legal issues addressed by the Commission involved the fairness of the proposed agreement, particularly concerning the terms and conditions of employment for specialised rope access workers. The Commission had to consider whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it adhered to the good faith bargaining principles. Additionally, the Commission examined if the agreement was consistent with the minimum entitlements provided under the National Employment Standards and other applicable awards and agreements.

In making its decision, the Commission evaluated the submissions from both parties and considered the broader context of the industry and the need to balance the interests of employers and employees. The Commission concluded that the proposed agreement was fair and lawful, taking into account the specific nature of the specialised rope access work. The Commission approved the agreement, finding that it met all the necessary statutory requirements and was in the interests of promoting harmonious, productive and equitable workplace relations.

The Fair Work Commission approved the Specialised Rope Access Enterprise Agreement 2011-2015 between the Brett Walters Family Trust (trading as Sealwell Pty Ltd) and the Construction, Forestry, Mining and Energy Union (CFMEU). The Commission determined that the agreement was fair and met all the statutory requirements under the Fair Work Act 2009, including the provision of fair and reasonable terms and conditions of employment and adherence to good faith bargaining principles.

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