Construction, Forestry, Mining and Energy Union

[2014] FWCA 2970

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5876)

L SHALAR & AF TAHA T/AS ALCON INTERIOR AND THE CFMEU PLASTERING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the L Shalar & AF Taha T/As Alcon Interior and the CFMEU Plastering Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the L Shalar & AF Taha T/As Alcon Interior and the CFMEU Plastering Industry 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] 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.

[6] 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.

[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 Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of the L Shalar & AF Taha T/As Alcon Interior and the CFMEU Plastering Industry Enterprise Agreement 2011-2015. The case was heard in the Fair Work Commission (FWC), where the primary dispute involved the terms and conditions of employment as outlined in the agreement.

The central legal issues revolved around whether the agreement complied with the relevant legislative framework, particularly the Fair Work Act 2009, and whether it met the standards for good faith bargaining and fair terms. The FWC had to assess whether the agreement was genuinely negotiated and whether it contained terms that were fair and reasonable, given the context of the industry and the parties' bargaining positions.

In its decision, the FWC thoroughly examined the process of negotiation and the content of the agreement. The Commission noted the parties' commitment to resolving disputes through agreed mechanisms and highlighted the inclusion of provisions that aimed to provide clarity and fairness to the workers. The FWC determined that the agreement was the product of genuine bargaining and contained fair terms and conditions. Consequently, the FWC approved the enterprise agreement.

The final order of the FWC was the approval of the L Shalar & AF Taha T/As Alcon Interior and the CFMEU Plastering Industry Enterprise Agreement 2011-2015, effective from the date of the decision. This approval meant that the terms and conditions stipulated in the agreement would govern the employment relationship between the employer and the employees covered by the agreement.

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