Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3667)

NEWGROW 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 Newgrow 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 Newgrow 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

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the Newgrow Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The respondent, Newgrow Pty Ltd, opposed the approval on several grounds. The dispute was adjudicated in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issues centred on whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was in the public interest, if it complied with the "better off overall test" (BOOT), and if it adhered to the requirements of the Fair Work Act regarding enterprise agreements. Additionally, the Commission needed to consider Newgrow’s submissions that the agreement was not in the public interest due to its potential impact on small businesses.

In its decision, the Full Bench of the Fair Work Commission found that the agreement satisfied the criteria for approval. The Commission acknowledged that the agreement provided for fair and reasonable terms and conditions, and it met the BOOT. The Commission also found that the agreement was in the public interest and did not unduly burden small businesses. The Full Bench dismissed Newgrow’s opposition, concluding that the agreement would not have a detrimental effect on the operations of small businesses and that the benefits to employees outweighed any potential disadvantages.

The Commission approved the Newgrow Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The decision emphasised the importance of fair and reasonable terms in enterprise agreements and highlighted the Commission's role in ensuring that agreements are in the public interest.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established