Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 2641

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5686)

SENATOR CRANES PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 22 APRIL 2014

Application for approval of the Senator Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Senator Cranes Pty Ltd and the CFMEU Mobile Crane Hiring 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 29 April 2014. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Senator Cranes Pty Ltd and the Construction, Forestry, Mining and Energy Union Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. The disagreement arose from certain provisions within the agreement, particularly those concerning the classification and remuneration of employees working in the mobile crane hiring industry.

The primary legal issues before the Commission were whether the terms and conditions stipulated in the enterprise agreement complied with the Fair Work Act 2009 and if they adhered to the principles of procedural fairness and good faith bargaining. The Commission needed to determine if the provisions met the standard of being "better off, overall and in balance" for the employees, as well as whether the negotiation process itself was fair and in line with the legislative requirements.

The Fair Work Commission found that the provisions in the enterprise agreement did not fully comply with the statutory requirements under the Fair Work Act 2009. The Commission highlighted issues concerning procedural fairness in the bargaining process, particularly the failure to provide adequate notice and opportunity for the employer to respond to certain proposed changes. Additionally, the Commission noted that certain terms of the agreement did not ensure that employees would be better off overall and in balance. Consequently, the application for approval was dismissed. The Commission did not approve the enterprise agreement, citing the procedural shortcomings and the failure of the agreement to meet the statutory standards for better off, overall and in balance.

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