Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 993

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3584)

BRADFORD ALUMINIUM WINDOWS & DOORS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Bradford Aluminium Windows & Doors 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 Bradford Aluminium Windows & Doors 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 (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

Printed by authority of the Commonwealth Government Printer

The parties to the case were the Construction, Forestry, Mining and Energy Union (CFMEU) and Bradford Aluminium Windows & Doors Pty Ltd. The dispute related to the approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The case was heard in the Fair Work Commission (FWC). The central legal issues the FWC had to decide were whether the agreement met the requirements of the Fair Work Act 2009 and if the necessary steps were taken to ensure that the agreement was free from any improper conduct.

The FWC considered whether the agreement was a genuine enterprise agreement as defined in the Fair Work Act. The court examined the process of agreement making, including if there were any procedural irregularities or improper conduct. The FWC also assessed whether the agreement was made in good faith and if it contained the minimum terms and conditions as prescribed by the Act. The FWC's decision hinged on whether the agreement was fair and balanced, taking into account the interests of both employers and employees.

After thorough examination, the FWC concluded that the agreement was made in accordance with the Act and met the necessary requirements. The FWC found no evidence of procedural irregularities or improper conduct. The agreement was deemed to be fair and balanced, containing the minimum terms and conditions prescribed by the Act. Consequently, the FWC approved the agreement. The approval ensures that the terms of the agreement will be binding on the parties involved, providing a framework for their employment relationship.

Construction, Forestry, Mining and Energy Union

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