Construction, Forestry, Mining and Energy Union

[2014] FWCA 2975

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5884)

CUSTOM RIGGING & RELOCATIONS PTY LTD AND THE CFMEU RIGGER / STEEL ERECTOR ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 8 MAY 2014

Application for approval of the Custom Rigging & Relocations Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Custom Rigging & Relocations Pty Ltd and the CFMEU Rigger / Steel Erector 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 Consultative 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 15 May 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of the Custom Rigging & Relocations Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015. Custom Rigging & Relocations Pty Ltd opposed the application, asserting that certain provisions of the agreement contravened section 235 of the Fair Work Act 2009 by failing to provide for a fair and efficient method of resolving disputes. The union argued that the agreement contained appropriate dispute resolution provisions and that the application should be approved.

The central legal issue before the Commission was whether the dispute resolution provisions in the agreement were fair and efficient, thereby complying with section 235 of the Fair Work Act. The Commission examined the specific steps outlined in the agreement for resolving disputes, including the requirement for mediation before proceeding to arbitration. The Commission noted that the agreement provided for a structured and timely process for resolving disputes, which was consistent with the objectives of the Fair Work Act. The Commission found that the agreement contained adequate and appropriate provisions for the fair and efficient resolution of disputes.

Consequently, the Commission approved the application for the agreement. The Fair Work Commission determined that the dispute resolution provisions in the Custom Rigging & Relocations Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015 were fair and efficient, thereby complying with section 235 of the Fair Work Act. The agreement was approved and registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established