Construction, Forestry, Mining and Energy Union

[2014] FWCA 1435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3789)

KEN HOPLEY FAMILY TRUST T/AS PAIGE COURTNEY PTY LTD AND THE CFMEU CIVIL 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 Ken Hopley Family Trust T/As Paige Courtney Pty Ltd and the CFMEU Civil Construction Industry 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 Civil 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

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union, acting on behalf of the Ken Hopley Family Trust trading as Paige Courtney Pty Ltd, applied to the Fair Work Commission for approval of the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015. The respondent, the Civil Construction Contractors Association of Australia, opposed the application on several grounds, including that the agreement contained provisions that were contrary to public policy and not genuinely intended for the benefit of the employees. The matter was heard by the Fair Work Commission.

The central legal issue was whether the agreement contained provisions that were genuinely intended for the benefit of the employees and not contrary to public policy. The respondent argued that certain clauses in the agreement, such as those related to the use of subcontractors and the requirement for employers to provide certain benefits, were not genuinely intended for the benefit of employees and were contrary to public policy. The applicant argued that the clauses were necessary to protect employees and were not contrary to public policy.

The Fair Work Commission found that the agreement contained provisions that were genuinely intended for the benefit of the employees and were not contrary to public policy. The Commission held that the clauses related to the use of subcontractors and the requirement for employers to provide certain benefits were necessary to protect employees and were not contrary to public policy. The Commission also found that the agreement contained provisions that were contrary to public policy, but these were not sufficient to prevent the approval of the agreement. The Commission approved the agreement subject to certain modifications.

The Fair Work Commission approved the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015 subject to certain modifications. The modifications related to the clauses that were found to be contrary to public policy. The respondent was ordered to pay the applicant's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established