Construction, Forestry, Mining and Energy Union

[2014] FWCA 2558

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5376)

BURCON (VIC) PTY LTD AND THE CFMEU CIVIL 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 Burcon (Vic) Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Burcon (Vic) Pty Ltd and the CFMEU Civil 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 case involved Burcon (Vic) Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred on the application for the approval of the Burcon (Vic) Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015. The matter was heard in the Fair Work Commission, which has jurisdiction over matters involving enterprise agreements under the Fair Work Act 2009.

The key legal issues before the Commission were whether the agreement met the formal requirements for approval under the Fair Work Act, and if it was in the best interests of the employees covered by the agreement. This involved assessing the agreement's compliance with the Act's provisions, including whether it provided for a fair and efficient method of determining wages and other conditions of employment, and if it was free from any coercive or oppressive conduct.

The Fair Work Commission found that the agreement was compliant with the formal requirements of the Act. It also determined that the agreement was in the best interests of the employees, as it provided for fair and efficient methods of determining wages and other employment conditions. The Commission noted that the agreement included provisions for dispute resolution and the protection of employees' rights, which were beneficial to the employees. As a result, the Commission approved the application for the agreement.

The Fair Work Commission approved the Burcon (Vic) Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015, finding it to be compliant with the Fair Work Act and in the best interests of the employees. This decision ensures that the employees covered by the agreement will benefit from its provisions, including fair and efficient methods of determining their wages and other employment conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established