Construction, Forestry, Mining and Energy Union

[2014] FWCA 2555

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/4113)

CONSTRUCTION CONTRACT LABOUR (VIC) PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 16 APRIL 2014

Application for approval of the Construction Contract Labour (Vic) Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Construction Contract Labour (Vic) Pty Ltd and the CFMEU Building and Construction 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 23 April 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter under consideration was an application for approval of the Construction Contract Labour (Vic) Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The Fair Work Commission was tasked with determining whether the agreement should be formally approved, a process which includes assessing its compliance with relevant federal labour laws. This case was significant as it involved an enterprise agreement within a key sector of the Australian economy, affecting numerous workers and employers.

The primary legal issue was whether the agreement met all statutory requirements, including provisions for fair and reasonable terms, and whether it adhered to procedural mandates such as proper consultation and negotiation processes. The Commission also needed to ensure that the agreement did not contravene any provisions of the Fair Work Act 2009, particularly those relating to unfair dismissal and employee protections. Another critical point was the agreement's compliance with the 'better off overall test', which ensures that employees are not disadvantaged by the terms of the agreement.

The Commission found that the agreement was broadly in line with statutory requirements. It was noted that the agreement had been the product of extensive negotiations and consultations, which were properly conducted. The terms were deemed fair and reasonable, and the Commission was satisfied that employees would not be worse off overall as a result of the agreement. The Commission highlighted the parties' commitment to fair work principles and the provision of adequate protections and benefits for employees. Consequently, the Fair Work Commission approved the agreement, confirming its compliance with the necessary legislative criteria.

The Commission's approval was conditional upon the agreement being formally registered and implemented within the specified timeframe. The decision provided clarity and certainty for the parties involved, enabling them to proceed with the implementation of the agreement without further legal impediments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established