Construction, Forestry, Mining and Energy Union

[2014] FWCA 1433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3787)

KEN HOPLEY FAMILY TRUST T/AS PAIGE COURTNEY PTY LTD AND THE CFMEU DEMOLITION ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Ken Hopley Family Trust T/As Paige Courtney Pty Ltd and the CFMEU Demolition Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Ken Hopley Family Trust T/As Paige Courtney Pty Ltd and the CFMEU Demolition 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

CaseChat Overview and Summary

The applicants, the Ken Hopley Family Trust trading as Paige Courtney Pty Ltd, sought approval from the Fair Work Commission for the CFMEU Demolition Enterprise Agreement 2011-2015. The applicants argued that the agreement was necessary to prevent industrial action that would disrupt the demolition of a hotel in Melbourne, a project they had been contracted for. The respondents, the Construction, Forestry, Mining and Energy Union (CFMEU) and several affiliated unions, opposed the application, claiming that the agreement was not fair and reasonable and did not meet the necessary standards for approval.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009. Specifically, the court had to determine whether the agreement met the criteria for approval under the Act, including whether it was fair and reasonable and whether it was necessary to prevent industrial action that would cause significant economic harm. The court also had to consider the impact of the agreement on the rights of the employees covered by the agreement, as well as the interests of the community more broadly.

In its decision, the court found that the agreement did not meet the necessary standards for approval. The court found that the agreement did not adequately protect the rights of employees, particularly in relation to pay rates and conditions. The court also found that the agreement did not adequately address issues of workplace health and safety, and that it contained provisions that were contrary to the public interest. The court concluded that the agreement was not fair and reasonable, and that it was not necessary to prevent significant economic harm. The application for approval of the agreement was therefore dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established