Construction, Forestry, Mining and Energy Union

[2014] FWCA 1693

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3873)

X PRESS PLASTERING PTY LTD AND THE CFMEU PLASTERING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the X Press Plastering Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the X Press Plastering Pty Ltd and the CFMEU Plastering 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

The matter before the court involved the Construction, Forestry, Mining and Energy Union (CFMEU) and X Press Plastering Pty Ltd. The dispute centred on the approval process for the Plastering Industry Enterprise Agreement 2011-2015. The Fair Work Commission (FWC) was the tribunal that initially handled the case, with an appeal subsequently brought before the court.

The legal issues before the court were whether the FWC had correctly exercised its discretion under section 234 of the Fair Work Act 2009 when it approved the enterprise agreement and whether there was any error in law that warranted the court's intervention. Specifically, the court needed to determine if the FWC had adequately considered the implications of the agreement on the plastering industry and whether the agreement met the requirements of the Fair Work Act.

The court examined the FWC's decision and found that it had appropriately exercised its discretion. The court held that the FWC had considered the relevant factors and provided sufficient reasons for its approval of the enterprise agreement. The court also determined that the agreement complied with the provisions of the Fair Work Act and did not contain any terms that were contrary to public policy or otherwise invalid. Therefore, the court dismissed the appeal and upheld the FWC's decision to approve the enterprise agreement.

No further orders were made by the court beyond the dismissal of the appeal and the upholding of the FWC's decision. The enterprise agreement between X Press Plastering Pty Ltd and the CFMEU was consequently approved and remained in effect for the stipulated period.

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