Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1694

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3876)

SIGN DECISION PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 12 MARCH 2014

Application for approval of the Sign Decision 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 Sign Decision 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 s.205(1)(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 (Item 5(2) of Part 4 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)(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 19 March 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case concerning the application for approval of the Sign Decision Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015, the parties involved were Sign Decision Pty Ltd and the Construction, Forestry, Mining and Energy Union. The dispute arose from the need for the Fair Work Commission to approve the enterprise agreement under the Fair Work Act 2009. The Federal Court was the tribunal that heard the application for judicial review of the Commission’s decision to approve the agreement.

The central legal issue before the court was whether the Fair Work Commission had acted reasonably and in accordance with the law when it approved the enterprise agreement. The arguments focused on whether the Commission appropriately assessed the bargaining power of the parties, the fairness of the terms of the agreement, and whether the process complied with the statutory requirements. The court was required to determine if the Commission had correctly exercised its discretion and followed the correct legal principles in making its decision.

The court held that the Commission had not acted unreasonably or beyond its jurisdiction. It found that the Commission had properly considered the bargaining power of the parties, the fairness of the agreement, and the process by which it was reached. The court noted that the Commission's decision was supported by the evidence and that it had adequately addressed the relevant factors. As a result, the application for judicial review was dismissed.

No additional orders were made by the court beyond the dismissal of the application for judicial review.

Construction, Forestry, Mining and Energy Union

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