Construction, Forestry, Mining and Energy Union

[2014] FWCA 3123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/5985)

LULIS CLEANING SERVICES 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 Lulis Cleaning Services 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 Lulis Cleaning Services 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 the case before the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of the Lulis Cleaning Services Pty Ltd and the CFMEU Building and Construction Site Cleaners Agreement 2011-2015. The applicant, Lulis Cleaning Services, is an employer within the cleaning industry, and the CFMEU represents the employees of the company. The dispute centred on whether the proposed agreement complied with the requirements of the Fair Work Act 2009 and if it met the criteria for being registered as a registered agreement.

The primary legal issues before the Commission were whether the agreement contained the necessary minimum terms and conditions, including minimum wages, penalty rates, and leave entitlements, and whether it complied with the procedural requirements for registration. Additionally, the Commission had to consider if the agreement was made in good faith and whether it facilitated the efficient operation of the workplace.

The Commission found that the agreement met the minimum terms and conditions required by the Fair Work Act. The agreement provided for appropriate wage rates, penalty rates, and leave entitlements, and it was made in good faith. The Commission also determined that the agreement facilitated the efficient operation of the workplace, as it provided for clear procedures for resolving disputes and managing the workplace. Consequently, the Commission approved the agreement, finding it to be a registered agreement under the Fair Work Act. The decision was based on the comprehensive evidence provided by the parties, which demonstrated that the agreement was fair and reasonable.

The Fair Work Commission approved the Lulis Cleaning Services Pty Ltd and the CFMEU Building and Construction Site Cleaners Agreement 2011-2015 as a registered agreement, effective from 1 July 2011 until 30 June 2015. The approval was based on the agreement meeting the minimum terms and conditions, being made in good faith, and facilitating the efficient operation of the workplace. The decision is final and binding on the parties, and no further application for approval is necessary during the term of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established