Construction, Forestry, Mining and Energy Union

[2014] FWCA 1960

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3988)

OVERDIMENSIONAL LIFT & SHIFT PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Overdimensional Lift & Shift Pty Ltd 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 Overdimensional Lift & Shift Pty Ltd 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 31 March 2014. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the matter of the Construction, Forestry, Mining and Energy Union (CFMEU) and Overdimensional Lift & Shift Pty Ltd, the Fair Work Commission was required to determine whether to approve a proposed enterprise agreement. The agreement in question was the Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. The CFMEU, as the representative of the employees, and Overdimensional Lift & Shift Pty Ltd, as the employer, had negotiated the terms of the agreement, which sought to regulate employment conditions within the mobile crane hiring industry.

The primary legal issue before the Commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This required the Commission to assess whether the agreement contained terms that were procedurally and substantively fair. The procedural fairness aspect involved ensuring that the agreement had been made in accordance with the relevant industrial relations laws, including proper consultation and negotiation processes. Substantively, the Commission had to consider whether the terms of the agreement provided fair and reasonable outcomes for both employees and employers.

The Commission found that the agreement was procedurally fair, as it was the result of genuine and proper bargaining between the parties. The evidence showed that there had been sufficient consultation and negotiation, and that the agreement had been made in good faith. Regarding substantive fairness, the Commission examined the terms of the agreement, including wages, working conditions, and other employment-related matters. After careful consideration, the Commission determined that the agreement provided fair and reasonable outcomes for both employees and employers, and was in the best interests of the parties involved.

Consequently, the Commission approved the Mobile Crane Hiring Industry Enterprise Agreement 2011-2015, with the final orders stating that the agreement would be registered and given effect from the date of the decision. This outcome ensured that the agreement would provide a stable and fair framework for employment conditions within the mobile crane hiring industry, benefitting both employees and employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established