Construction, Forestry, Mining and Energy Union

[2014] FWCA 1183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3689)

NP SPITERI FAMILY TRUST (THE TRUSTEE FOR) T/AS LIVSON CONSTRUCTION SERVICES PTY LTD AND THE CFMEU RIGGER / STEEL ERECTOR ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 FEBRUARY 2014

Application for approval of the NP Spiteri Family Trust (The Trustee for) T/As Livson Construction Services 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 NP Spiteri Family Trust (The Trustee for) T/As Livson Construction Services 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 25 February 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved the Construction, Forestry, Mining and Energy Union (CFMEU) and the NP Spiteri Family Trust trading as Livson Construction Services Pty Ltd. The dispute centred around the application for approval of the CFMEU Rigger/Steel Erector Enterprise Agreement 2011-2015. The matter was heard in the Fair Work Commission of Australia.

The primary legal issues before the Commission were whether the agreement met the criteria for approval under the Fair Work Act 2009, specifically if it provided for fair and reasonable terms and conditions of employment. Additionally, the Commission had to determine whether the agreement was made in good faith and if it facilitated the efficient operation of the enterprise. The Commission also examined whether the agreement appropriately balanced the interests of employers and employees.

The Fair Work Commission found that the agreement was made in good faith and contained terms and conditions that were fair and reasonable. The Commission considered the process by which the agreement was negotiated and concluded that it appropriately balanced the interests of both parties. The Commission also noted that the agreement facilitated the efficient operation of the enterprise and was consistent with the principles of the Fair Work Act. Consequently, the Commission approved the agreement, acknowledging its compliance with the statutory requirements.

The Fair Work Commission approved the CFMEU Rigger/Steel Erector Enterprise Agreement 2011-2015, finding it to be fair and reasonable and made in good faith. The Commission's decision was based on the balance of interests between employers and employees and the efficient operation of the enterprise as per the Fair Work Act 2009.

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