Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3734)

BAYVIEW WELDING 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 Bayview Welding 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 Bayview Welding 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

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CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Bayview Welding Pty Ltd, who sought approval for the Bayview Welding Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015. The dispute centred on whether the proposed enterprise agreement complied with the Fair Work Act 2009, particularly concerning the union's right to be recognised as a bargaining representative and the terms and conditions outlined within the agreement. The Federal Circuit Court was tasked with evaluating the application for approval of the enterprise agreement.

The central legal issues before the court were whether the enterprise agreement met the statutory requirements under the Fair Work Act, including compliance with the provisions concerning the union's recognition and the fairness of the terms and conditions. The court had to consider whether the agreement provided for minimum wages and conditions, and whether it adhered to the procedural requirements for approval. Additionally, the court assessed whether the agreement unfairly discriminated against certain employees and if it was free from prohibited content as defined by the Act.

The court meticulously examined the enterprise agreement, assessing its alignment with the statutory requirements. It determined that the agreement did comply with the provisions of the Fair Work Act, including the recognition of the union as a bargaining representative. The court found that the agreement provided for minimum wages and conditions and was procedurally sound. Furthermore, the court held that the agreement did not unfairly discriminate against any employees and was free from prohibited content. Consequently, the court approved the application for the enterprise agreement, finding it to be compliant with the Act.

The final orders of the court were to approve the Bayview Welding Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015, effective from 1 April 2011. The court's decision provided clarity and certainty for both the union and the employer, allowing the agreement to be implemented as intended.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established