Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 3120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/5960)

DIAL A COMMERCIAL CLEANER PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION SITE CLEANERS AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 13 MAY 2014

Application for approval of the Dial A Commercial Cleaner Pty Ltd and the CFMEU Building and Construction Site Cleaners Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Dial A Commercial Cleaner Pty Ltd and the CFMEU Building and Construction Site Cleaners 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 20 May 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

In this case, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of the CFMEU Building and Construction Site Cleaners Agreement 2011-2015 with Dial A Commercial Cleaner Pty Ltd. The dispute was heard by the Fair Work Commission (FWC), an independent statutory body responsible for resolving employment and workplace relations disputes in Australia. The CFMEU aimed to have the agreement approved under the Fair Work Act 2009, which requires that agreements be made in good faith and provide for fair and efficient workplace practices.

The key legal issues before the FWC were whether the agreement was made in good faith, provided for fair and efficient workplace practices, and adhered to the relevant provisions of the Fair Work Act. The CFMEU argued that the agreement was made in good faith and provided for fair and efficient workplace practices, while Dial A Commercial Cleaner Pty Ltd contended that the agreement did not meet the requirements of the Act and was not made in good faith.

The FWC found that the agreement was made in good faith and provided for fair and efficient workplace practices. The Commission held that the agreement contained provisions that met the requirements of the Fair Work Act, including provisions for minimum wages, hours of work, leave entitlements, and dispute resolution mechanisms. The FWC also found that the agreement did not contain any terms that were unfair or inefficient and that it provided for a fair and efficient workplace. Based on these findings, the FWC approved the agreement.

As a result of the FWC's decision, the CFMEU Building and Construction Site Cleaners Agreement 2011-2015 with Dial A Commercial Cleaner Pty Ltd was approved, and the agreement became legally binding on the parties. The final orders of the FWC included the approval of the agreement and the direction that it be registered with the Fair Work Ombudsman.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established