Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 2557

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/4116)

ARDEN ARCHITECTURAL 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 Arden Architectural 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 Arden Architectural 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

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CaseChat Overview and Summary

The matter involved Arden Architectural Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU), with the Fair Work Commission presiding over the dispute. Arden Architectural sought approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, which outlined the terms and conditions of employment for workers within the building and construction industry. The application centred on whether the agreement complied with the Fair Work Act 2009 and the relevant regulatory framework.

The legal issues before the court encompassed the compliance of the proposed enterprise agreement with statutory requirements, the fairness and appropriateness of the agreement's provisions, and whether the agreement was made in good faith and without coercion. The court had to evaluate if the agreement provided for a safety net of minimum entitlements, if it contained appropriate mechanisms for dispute resolution, and if it allowed for flexibility in the workforce.

The court meticulously examined the provisions of the agreement, considering the need for a balance between the rights of employers and employees. It concluded that the agreement did not adequately address the safety net of minimum entitlements as required by the Fair Work Act. Additionally, the court found that certain provisions of the agreement could potentially lead to unfair outcomes for employees. Consequently, the court ruled that the proposed enterprise agreement did not meet the statutory requirements for approval and dismissed the application. The decision underscored the importance of ensuring that enterprise agreements comply with legislative standards to protect the interests of both employers and employees in the building and construction industry.

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