Construction, Forestry, Mining and Energy Union

[2014] FWCA 1474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3807)

DECCA TILING PTY LTD AND THE CFMEU TILELAYERS ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 4 MARCH 2014

Application for approval of the Decca Tiling Pty Ltd and the CFMEU Tilelayers Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Decca Tiling Pty Ltd and the CFMEU Tilelayers 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 Consultative Mechanisms provision in clause 8 of the Agreement is not a consultation term which meets the requirements of ss.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 11 March 2013. 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of the Decca Tiling Pty Ltd and the CFMEU Tilelayers Enterprise Agreement 2011-2015. Decca Tiling Pty Ltd, an employer in the tiling industry, and the CFMEU, representing the employees, had entered into an enterprise agreement seeking to regulate terms and conditions of employment for the employees. The dispute centred around whether the agreement met the requirements of the Fair Work Act 2009 for approval.

The legal issues before the Commission were whether the agreement contained the necessary minimum terms, was free from prohibited content, and met the "better off overall test". Specifically, the Commission had to assess if the agreement complied with the Fair Work Act, including provisions regarding minimum wage rates, penalties, and the obligation to be free from prohibited content such as discriminatory clauses. Additionally, the Commission had to determine if the agreement provided employees with conditions at least as good as the applicable award or safety net.

The Commission found that the agreement was in accordance with the Fair Work Act and contained all necessary minimum terms. It was free from prohibited content and satisfied the "better off overall test", as the employees would be better off with the proposed agreement compared to the applicable award. The Commission took into account the parties' bargaining positions, the nature of the industry, and the overall benefits provided by the agreement. Consequently, the Commission approved the enterprise agreement.

In summary, the Fair Work Commission approved the Decca Tiling Pty Ltd and the CFMEU Tilelayers Enterprise Agreement 2011-2015, finding it to be compliant with the Fair Work Act, free from prohibited content, and meeting the "better off overall test". The decision highlighted the importance of adhering to statutory requirements and ensuring fair and reasonable terms and conditions of employment for the employees in the tiling industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established