Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3810)

NELSON ASPHALTING AND EXCAVATIONS PTY LTD AND THE CFMEU ASPHALTING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Nelson Asphalting and Excavations Pty Ltd and the CFMEU Asphalting Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Nelson Asphalting and Excavations Pty Ltd and the CFMEU Asphalting 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 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

The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for the Nelson Asphalting and Excavations Pty Ltd and the CFMEU Asphalting Industry Enterprise Agreement 2011-2015, with the application being heard in the Fair Work Commission. The employer contested the application, raising concerns over several clauses within the proposed agreement. The primary legal issues the Commission had to address were whether the agreement was in compliance with the Fair Work Act 2009 and whether the provisions were fair and reasonable.

The Fair Work Commission first considered the procedural fairness of the agreement, examining whether the process of negotiating the agreement was conducted appropriately. It was established that the agreement was negotiated in good faith, with adequate representation from both parties. The Commission then turned to the substantive fairness of the agreement, evaluating each clause against the criteria of procedural fairness, good faith bargaining, and overall reasonableness. The Commission found that while some provisions were contentious, the majority of the clauses were fair and reasonable, and did not contravene any provisions of the Fair Work Act. Consequently, the Commission approved the agreement, subject to certain conditions aimed at ensuring compliance with the Fair Work Act.

In its decision, the Fair Work Commission emphasised the importance of balancing the rights of employers and employees, while also considering the broader economic and social implications of the agreement. The Commission acknowledged the employer's concerns but ultimately concluded that the benefits of the agreement outweighed any potential detriments. The approval of the Nelson Asphalting and Excavations Pty Ltd and the CFMEU Asphalting Industry Enterprise Agreement 2011-2015 was granted, subject to the specified conditions. These conditions included the requirement for the employer to provide regular reports on compliance with the agreement and the need for any significant changes to be negotiated in good faith with the CFMEU.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established