Construction, Forestry, Mining and Energy Union

[2014] FWCA 1319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3737)

NORWOOD RIGGING STAFF PTY LTD AND THE CFMEU RIGGER / STEEL ERECTOR ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 26 FEBRUARY 2014

Application for approval of the Norwood Rigging Staff Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Norwood Rigging Staff Pty Ltd and the CFMEU Rigger / Steel Erector 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 6 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 5 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 parties involved in this case were the Construction, Forestry, Mining and Energy Union (CFMEU) and Norwood Rigging Staff Pty Ltd. The dispute centred around the application for the approval of the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015. The matter was heard by the Fair Work Commission, an Australian workplace relations tribunal. The crux of the dispute lay in whether the agreement in question complied with the statutory requirements for enterprise agreements, specifically under section 231 of the Fair Work Act 2009.

The central legal issue that the Commission had to address was whether the enterprise agreement met the necessary criteria for approval. This involved examining whether the agreement covered employees who were part of the bargaining unit, and whether it adhered to the provisions outlined in the Fair Work Act. Furthermore, the Commission needed to ensure that the agreement did not include provisions that would undermine the safety and health of employees, as mandated by section 17 of the Act.

The Commission determined that the enterprise agreement did indeed comply with the statutory requirements. It found that the agreement was made in good faith and was not intended to undermine the safety and health of employees. The Commission also concluded that the agreement was appropriate for the employees covered by it, as it provided for reasonable terms and conditions of employment. The decision was based on a detailed analysis of the agreement's provisions and the context in which it was made. The Commission's approval of the agreement was thus grounded in a comprehensive understanding of both the legal framework and the practical realities of the employment conditions.

The Fair Work Commission approved the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015, thereby resolving the dispute in favour of the union and the employer. The Commission's decision provided clarity and certainty regarding the terms of employment for the employees covered by the agreement, ensuring that the agreement was both legally compliant and beneficial for the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established