Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 2563

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5591)

SORANI TILING CONTRACTORS UNIT TRUST (TRUSTEE FOR) T/AS SORANI TILING CONTRACTORS AND THE CFMEU TILELAYERS ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Sorani Tiling Contractors Unit Trust (Trustee for) T/As Sorani Tiling Contractors and the CFMEU Tilelayers Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Sorani Tiling Contractors Unit Trust (Trustee for) T/As Sorani Tiling Contractors 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 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

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CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Sorani Tiling Contractors, with the primary focus on the approval of the CFMEU Tilelayers Enterprise Agreement 2011-2015. The court was asked to determine whether the agreement met the necessary criteria under the Fair Work Act 2009, specifically regarding its fairness and the process by which it was negotiated. The dispute arose from objections to the agreement by other stakeholders, which led to the application for approval by the Fair Work Commission.

The legal issues before the court centred on the interpretation and application of the Fair Work Act 2009, particularly sections that pertain to the approval of enterprise agreements. The court needed to assess whether the agreement was genuinely negotiated, and if it met the 'better off overall test', which requires that the agreement must not disadvantage employees more than their previous conditions. Additionally, the court examined the procedural fairness of the negotiation process and whether the agreement was genuinely free from any coercion or undue influence.

In its reasoning, the court noted that the agreement had been negotiated in good faith and met the 'better off overall test'. The court found that the negotiation process was fair and that the agreement did not disadvantage employees. The objections raised by other parties were not sufficient to overturn the agreement, as they did not demonstrate any significant flaws or breaches of the legal requirements. Consequently, the court upheld the agreement, confirming its approval and implementation.

The final orders of the court were to approve the CFMEU Tilelayers Enterprise Agreement 2011-2015 as negotiated by the relevant parties. The court mandated that the agreement be registered and enforced in accordance with the Fair Work Act 2009, ensuring that it was implemented without further impediment. This decision provided clarity and finality to the parties involved, affirming the legitimacy and enforceability of the enterprise agreement.

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