Construction, Forestry, Mining and Energy Union

[2014] FWCA 1473

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3805)

ROHLF, MATTHEW T/AS MATTHEW ROHLF AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Rohlf, Matthew T/As Matthew Rohlf 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 Rohlf, Matthew T/As Matthew Rohlf 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 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 matter before the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the Rohlf, Matthew T/As Matthew Rohlf and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The union sought to have the enterprise agreement recognised as a registered agreement under the Fair Work Act 2009. The application was opposed by several employers in the building and construction industry who raised concerns about various provisions within the agreement.

The primary legal issues the Fair Work Commission needed to address were whether the enterprise agreement had been fairly and properly negotiated, whether it complied with the requirements of the Fair Work Act, and if it met the 'better off overall test'. The opposition argued that certain provisions of the agreement were not fairly negotiated and did not satisfy the 'better off overall test', which requires that employees be no worse off than they would be under their existing awards or agreements.

In its decision, the Commission examined the negotiation process and found that the agreement had indeed been fairly negotiated. The Commission also considered the provisions of the agreement against the statutory requirements of the Fair Work Act. It determined that while some provisions might be considered overly generous, they did not breach any legislative requirements and met the 'better off overall test'. Consequently, the Commission approved the application for registration of the enterprise agreement, finding that it was in the interests of fair and efficient industrial relations.

The Fair Work Commission ordered that the Rohlf, Matthew T/As Matthew Rohlf and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be registered as a registered agreement. This decision was made on the basis that the agreement had been fairly negotiated and met the legislative requirements of the Fair Work Act. The Commission also noted that the agreement, while containing provisions that some may view as advantageous, ultimately ensured that employees were not worse off than they would have been under their previous arrangements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established