Construction, Forestry, Mining and Energy Union

[2014] FWCA 2976

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5885)

AYACH, MOUHAMED T/AS K TILING AND THE CFMEU TILELAYERS ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Ayach, Mouhamed T/As K Tiling and the CFMEU Tilelayers Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Ayach, Mouhamed T/As K Tiling 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 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

The case involved an application for approval of an enterprise agreement between the Ayach, Mouhamed T/As K Tiling and the Construction, Forestry, Mining and Energy Union (CFMEU). The CFMEU sought to have the agreement approved by the Fair Work Commission. The nature of the dispute was centred on the validity and enforceability of the terms within the agreement, specifically focusing on whether it complied with the Fair Work Act 2009.

The legal issues before the court required an examination of whether the enterprise agreement met the necessary criteria for approval under the Fair Work Act. This involved assessing whether the agreement was genuinely bargained between the parties, free from any improper influence or coercion. Additionally, the court needed to determine if the agreement met the procedural requirements, such as the proper provision of relevant documents and the opportunity for genuine bargaining.

In delivering its decision, the court scrutinised the evidence and submissions presented by both parties. The court found that the agreement was genuinely negotiated and did not involve any improper influence. Furthermore, the court was satisfied that all procedural requirements had been met. Consequently, the court approved the enterprise agreement, finding it to be fair and reasonable.

The final orders of the court included the approval of the Ayach, Mouhamed T/As K Tiling and the CFMEU Tilelayers Enterprise Agreement 2011-2015. The court's decision affirmed the validity of the agreement, allowing it to take effect and govern the employment conditions between the parties as per the terms outlined.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established