Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3521)

COLIN & BARBARA MCDONALD FAMILY TRUST T/AS MCDONALD MARINE AND THE CFMEU RIGGER / STEEL ERECTOR ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 FEBRUARY 2014

Application for approval of the Colin & Barbara McDonald Family Trust T/As McDonald Marine 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 Colin & Barbara McDonald Family Trust T/As McDonald Marine 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 12 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

In the Fair Work Commission, Construction, Forestry, Mining and Energy Union sought approval for the Colin & Barbara McDonald Family Trust T/As McDonald Marine and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015. The applicant, a registered Australian Building and Construction Commission compliant organisation, aimed to have the enterprise agreement recognised and enforceable under the Fair Work Act 2009. The Trust, a ship-building company, opposed the application, arguing that the agreement did not meet the "better off overall test" as stipulated in the Act.

The primary legal issue before the Commission was whether the terms and conditions of the enterprise agreement provided for employees who were parties to the agreement a "direct benefit" compared to the applicable award. This required consideration of whether the agreement improved the employees' overall terms and conditions of employment. The dispute also encompassed the interpretation of the "better off overall test" as it applied to the specific context of the maritime industry and the ship-building sector.

The Fair Work Commission examined the evidence presented by both parties, including the terms of the agreement, the applicable award, and the economic context in which the agreement was made. The Commission found that the agreement did provide a direct benefit to employees by improving their overall terms and conditions of employment, including wages, leave provisions, and other entitlements. The Commission also considered the impact of the agreement on the economic viability of the Trust and concluded that the agreement did not undermine the financial sustainability of the business. Therefore, the Commission approved the enterprise agreement, finding it met the requirements of the Fair Work Act.

The Fair Work Commission approved the Colin & Barbara McDonald Family Trust T/As McDonald Marine and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015. The decision was based on the finding that the agreement provided a direct benefit to employees and did not undermine the economic viability of the Trust. The Commission's approval made the agreement enforceable under the Fair Work Act, ensuring that the terms and conditions of employment were improved for the employees covered by the agreement.

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