Construction, Forestry, Mining and Energy Union

[2014] FWCA 862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3528)

ARROW FACILITY SERVICES PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION SITE CLEANERS AGREEMENT 2011-2015

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

Application for approval of the Arrow Facility Services Pty Ltd and the CFMEU Building and Construction Site Cleaners Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Arrow Facility Services Pty Ltd and the CFMEU Building and Construction Site Cleaners 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

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Arrow Facility Services Pty Ltd and the CFMEU Building and Construction Site Cleaners Agreement 2011-2015. Arrow Facility Services Pty Ltd, an employer in the building and construction industry, sought the approval of this enterprise agreement to govern the terms and conditions of employment for its employees who are members of the CFMEU. The CFMEU, as a registered trade union, aimed to secure favourable terms for its members through this agreement.

The primary legal issue before the Commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions of employment, including minimum rates of pay, hours of work, and other entitlements. Additionally, the Commission needed to assess whether the agreement complied with the provisions for genuine bargaining and did not unfairly discriminate against any group of employees.

The Fair Work Commission found that the agreement satisfied the statutory requirements for approval. The Commission noted that the agreement provided for reasonable terms and conditions of employment and met the criteria for genuine bargaining. The Commission also determined that the agreement did not unfairly discriminate against any group of employees. As a result, the Commission approved the agreement, and it came into effect on 1 July 2011.

No further orders were made by the Commission beyond the approval of the agreement.

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