Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1961

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3992)

NATIONAL CONCRETE SCANNING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 24 MARCH 2014

Application for approval of the National Concrete Scanning 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 National Concrete Scanning 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 31 March 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 Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for the approval of the National Concrete Scanning Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application came under the Fair Work Act 2009, specifically section 231, which requires the Commission to approve an enterprise agreement if it meets certain criteria, including being free from prohibited content and addressing the registration of the agreement with the Australian Industrial Relations Commission.

The primary legal issue before the Commission was whether the agreement contained any provisions that would render it non-compliant with the Act. The Commission needed to examine the agreement's content to determine if it adhered to the statutory requirements for enterprise agreements, including the prohibition against including matters that would have the effect of indirectly imposing a condition of employment. Additionally, the Commission had to consider whether the agreement was made in good faith and if it included provisions that would facilitate the efficient operation of the enterprise.

The Commission found that the agreement was free from prohibited content and was made in good faith. It was noted that the agreement contained provisions that were necessary for the efficient operation of the enterprise and that the parties had negotiated in good faith to reach the terms of the agreement. The Commission approved the agreement, highlighting that it met all the statutory requirements under the Fair Work Act 2009. Consequently, the application for approval was successful, and the agreement was registered with the Fair Work Commission.

The final orders of the Commission included the approval of the National Concrete Scanning Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, and its registration with the Fair Work Commission. The agreement was to be binding on all employees covered by it, and the parties were directed to take all necessary steps to give effect to the agreement. The decision underscored the importance of ensuring that enterprise agreements are negotiated in good faith and comply with the statutory requirements set out in the Fair Work Act 2009.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

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