Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1156

The attached document replaces the document previously issued with the above code on 17 February 2014.

The words “Application for variation” in the subject line have been replaced with “Application for approval”.

Matthew Jordon

Acting Associate to Senior Deputy President Watson

Dated 17 February 2014

[2014] FWCA 1156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3673)

DA STAR (AUS) PTY LTD AND THE CFMEU PLASTERING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 17 FEBRUARY 2014

Application for approval of the Da Star (Aus) Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Da Star (Aus) Pty Ltd and the CFMEU Plastering 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 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 24 February 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 (CFMEU) sought approval for the Da Star (Aus) Pty Ltd and CFMEU Plastering Industry Enterprise Agreement 2011-2015. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the requisite standards under the Fair Work Act 2009. The legal issues before the FWC centred on whether the agreement contained terms that were not in the best interests of the employees and whether the agreement had been made in accordance with the procedural requirements of the Act.

The FWC carefully examined the terms of the agreement, including those concerning redundancy, to ascertain whether they aligned with the objectives of the Fair Work Act, which includes promoting high and productive employment and providing for fair wages and conditions. The FWC also assessed whether the agreement had been made with genuine consultation between the parties and whether it provided for fair and reasonable terms and conditions of employment. The FWC found that the agreement, while generally fair and reasonable, contained certain terms that did not meet the statutory criteria for approval. Specifically, the FWC identified issues with the redundancy provisions, which it deemed to be overly generous to the employer and not in the best interests of the employees.

After conducting a detailed analysis, the FWC determined that the agreement did not meet the standards for approval under section 233 of the Fair Work Act. Consequently, the application for approval was dismissed. The FWC's decision was grounded in its finding that the redundancy provisions were not fair and reasonable, and thus the agreement could not be approved in its current form. The FWC highlighted the importance of ensuring that enterprise agreements promote the interests of employees while also providing a fair framework for employers. The FWC's decision underscores the need for careful scrutiny of enterprise agreements to ensure they comply with the statutory requirements and adequately protect the interests of employees.

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