Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 2554

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/4111)

ARC FORCE ACCESS CRANES AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Arc Force Access Cranes 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 Arc Force Access Cranes 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 23 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 concerned an application for approval of the Arc Force Access Cranes and the Construction, Forestry, Mining and Energy Union Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. The agreement was intended to regulate the terms and conditions of employment for crane operators within the mobile crane hiring industry. The dispute arose as the employer sought to implement the agreement, which the union contested on several grounds.

The key legal issues before the commission were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, and whether it was genuinely negotiated and free from any improper conduct. The union argued that the agreement was not genuinely negotiated as it was imposed by the employer, and that it contained provisions that were not in the best interests of the employees. The employer contended that the agreement was a genuine product of negotiation and was in the best interests of the employees.

The commission found that the agreement did not meet the statutory requirements for approval. It held that the employer had not genuinely negotiated the agreement as it had imposed the terms on the union. The commission further found that certain provisions of the agreement were not in the best interests of the employees, including provisions that limited the union's ability to represent its members. The commission refused to approve the agreement.

The commission ordered that the agreement be rejected and that the employer and union return to the bargaining table to genuinely negotiate a new agreement. The commission also ordered that the employer pay the union's costs of the application. The decision highlights the importance of genuine negotiation and the need for agreements to be in the best interests of employees.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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