Construction, Forestry, Mining and Energy Union

[2014] FWCA 1425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3769)

FENCING BY METRO UNIT TRUST (TRUSTEE FOR) T/AS FENCING BY METRO UNIT TRUST AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 28 FEBRUARY 2014

Application for approval of the Fencing By Metro Unit Trust (Trustee for) T/As Fencing By Metro Unit Trust 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 Fencing By Metro Unit Trust (Trustee for) T/As Fencing By Metro Unit Trust 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 (the 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 7 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 parties involved in the matter were the Fencing By Metro Unit Trust (Trustee for) T/As Fencing By Metro, a company, and the Construction, Forestry, Mining and Energy Union (CFMEU), a union. The dispute centred around the application for approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 by the Fair Work Commission. The case was heard in the Federal Court of Australia.

The legal issues the court needed to decide involved the interpretation and application of the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the court had to determine whether the agreement met the criteria for approval as set out in the legislation, including whether the agreement provided for a fair and efficient workplace and if it complied with the relevant provisions of the Act and Regulations.

The court examined the agreement in detail, considering the various provisions and their implications for both the employer and employees. It found that the agreement did indeed meet the necessary criteria for approval, as it provided for a fair and efficient workplace and complied with the relevant legislative provisions. The court also noted that the agreement had been negotiated in good faith and was in the best interests of the employees and the employer.

The court's decision upheld the approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The final orders of the court confirmed the approval of the agreement and directed the Fair Work Commission to take such steps as were necessary to give effect to the decision. The court's reasoning and decision provide important guidance on the interpretation and application of the Fair Work Act and Regulations in relation to enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established