Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3663)

LOUVREWORKS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 14 FEBRUARY 2014

Application for approval of the Louvreworks Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Louvreworks Pty Ltd and the CFMEU Building and 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 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 21 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 Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Louvreworks Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was brought before the Fair Work Commission. The dispute centred on whether the agreement contained unfair provisions that would not be in the best interests of the employees.

The legal issues involved interpreting the Fair Work Act 2009 and determining whether any provisions within the agreement were unfair. The CFMEU argued that the agreement was fair and in the best interests of the employees, while Louvreworks Pty Ltd contended that certain provisions were unfair and should not be approved.

The Fair Work Commission examined the agreement and found that several provisions were indeed unfair. These included provisions related to the calculation of penalty rates for shift work, which the Commission determined were not in the best interests of the employees. As a result, the Commission did not approve the agreement. The Commission also provided guidance on the types of provisions that may be considered unfair in future agreements.

The Fair Work Commission's decision not to approve the agreement highlights the importance of ensuring that enterprise agreements are fair and in the best interests of employees. The Commission's guidance on what constitutes an unfair provision will be useful for future agreements and may help prevent similar issues from arising.

Construction, Forestry, Mining and Energy Union

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