Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 994

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3576)

PARACON GROUP 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 Paracon Group 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 Paracon Group 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

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union, as the representative of the employees, filed an application for the approval of the Paracon Group Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was heard by the Fair Work Commission, presided over by Deputy President G S Smith. The dispute centred around the terms of the proposed enterprise agreement, with the union arguing for its approval while the employer raised concerns about specific provisions.

The central legal issue before the court was whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was a "better off overall test" (BOOT) agreement, meaning that the overall employment conditions provided by the agreement were more favourable than those provided by the relevant awards or other agreements. The employer argued that certain provisions of the agreement did not meet this standard, while the union contended that it did.

The court examined the provisions of the agreement in detail, considering whether they provided better overall employment conditions for the employees. The court found that the agreement met the BOOT criteria and was thus approved. The court reasoned that while some provisions raised concerns, the overall package of benefits provided by the agreement was more favourable than the existing conditions. This conclusion was based on a comprehensive analysis of the agreement's provisions and their impact on the employees' terms and conditions of employment.

The Fair Work Commission approved the Paracon Group Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, finding it met the better off overall test. The court's decision was based on its determination that the overall package of benefits provided by the agreement was more favourable than the existing conditions, despite some provisions being contentious. This ruling ensures that the agreement will be implemented, providing the agreed-upon terms and conditions for the employees involved.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established