Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 2782

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5748)

MAZZA FAMILY TRUST (THE TRUSTEE FOR) T/AS DNA PLASTERING PTY LTD AND THE CFMEU PLASTERING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 29 APRIL 2014

Application for approval of the Mazza Family Trust (The Trustee For) T/As DNA Plastering Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Mazza Family Trust (The Trustee For) T/As DNA Plastering Pty Ltd 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 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 6 May 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) made an application to the Fair Work Commission for approval of the Mazza Family Trust, trading as DNA Plastering Pty Ltd, and the CFMEU Plastering Industry Enterprise Agreement 2011-2015. The applicant argued that the enterprise agreement met the requirements under the Fair Work Act 2009. The dispute was heard by the Fair Work Commission.

The legal issues before the Commission involved whether the enterprise agreement contained the necessary elements and whether it was consistent with the Fair Work Act. The Commission had to determine if the agreement provided for the minimum terms and conditions of employment, if it included appropriate dispute resolution mechanisms, and if it complied with procedural requirements, such as the involvement of relevant employee representatives. Additionally, the Commission had to consider if the agreement met the "better off overall test" to ensure that employees would not be worse off financially under the new agreement compared to their previous terms.

In reaching its decision, the Commission examined the specific provisions of the enterprise agreement and assessed them against the statutory requirements. It found that the agreement included the necessary elements and provided for the minimum terms and conditions of employment. The Commission also determined that the dispute resolution mechanisms were appropriate and that the agreement complied with the procedural requirements. Importantly, the Commission concluded that the agreement passed the better off overall test, as it offered employees improved conditions and benefits without reducing their overall financial position. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the enterprise agreement, finding it to be consistent with the requirements of the Fair Work Act and meeting the better off overall test. The agreement was thus accepted as a valid and enforceable enterprise agreement between the Mazza Family Trust, trading as DNA Plastering Pty Ltd, and the CFMEU.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established