Construction, Forestry, Mining and Energy Union

[2014] FWCA 1477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3825)

SUPASTRUCTURES PTY LTD 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 Supastructures 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 Supastructures 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 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 case involved an application for approval of the Supastructures Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The matter was heard in the Fair Work Commission (FWC), an independent statutory tribunal with jurisdiction over employment matters in Australia. The central dispute was whether the proposed enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement was in the public interest, free from any contraventions of the Act, and if it provided a fair and efficient workplace arrangement.

The key legal issues before the FWC were whether the agreement complied with the procedural requirements of the Fair Work Act and if it provided for fair and efficient terms and conditions for employees. The CFMEU argued that the agreement was fair and efficient, while Supastructures Pty Ltd raised concerns about certain provisions impacting operational flexibility and competitiveness. The FWC had to assess if the agreement provided adequate safeguards for employee rights and if it balanced the interests of both employers and employees.

The FWC concluded that the agreement was fair and efficient, satisfying all the necessary criteria under the Fair Work Act. The tribunal found that the agreement provided for appropriate terms and conditions, including minimum wages, penalty rates, and leave provisions, while also allowing for flexibility in the workplace. The FWC determined that the benefits of the agreement, including improved workplace relations and certainty for both parties, outweighed any potential drawbacks. As a result, the FWC approved the enterprise agreement.

The FWC ordered that the Supastructures Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be approved and registered, effective from the date of the decision. This approval ensures that the agreement can be implemented, providing a stable and regulated working environment for employees and employers alike.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established