Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3593)

LEXICON SITE SERVICES PTY LTD AND THE CFMEU RIGGER / STEEL ERECTOR ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 10 FEBRUARY 2014

Application for approval of the Lexicon Site 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 Lexicon Site 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 (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 8 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 17 February 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the matter of an application for approval of the Lexicon Site Services Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015, the Fair Work Commission was tasked with determining whether the proposed agreement met the criteria for approval. The application was brought by the Construction, Forestry, Mining and Energy Union (CFMEU), and the employer, Lexicon Site Services Pty Ltd, did not oppose the application. The agreement in question sought to establish terms and conditions of employment for riggers and steel erectors within the relevant industries.

The primary legal issue before the Commission was whether the agreement complied with the requirements set out in the Fair Work Act 2009, particularly whether it met the "better off overall test" and the "public interest test." The Commission considered whether the proposed agreement would provide employees with a fair and reasonable outcome, both in comparison to the existing award conditions and in the broader public interest.

After reviewing the submissions and evidence presented by the CFMEU, the Commission determined that the agreement was consistent with the legislative criteria. The agreement provided improved terms and conditions for the employees, including enhanced pay rates, leave provisions, and dispute resolution mechanisms. The Commission found that the agreement would result in employees being better off overall, taking into account the improved terms and conditions, as well as the public interest considerations such as the maintenance of industrial peace and productivity within the industry. Consequently, the Commission approved the agreement, recognising its compliance with the statutory requirements.

The Fair Work Commission approved the Lexicon Site Services Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015.

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