Construction, Forestry, Mining and Energy Union

[2014] FWCA 859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3522)

STERLING CONCRETE CONSTRUCTIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Sterling Concrete Constructions 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 Sterling Concrete Constructions 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 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

The case before the Fair Work Commission involved an application for approval of the Sterling Concrete Constructions Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The agreement sought to govern the employment conditions of workers employed by Sterling Concrete Constructions Pty Ltd under the Fair Work Act 2009. The dispute centred on whether the proposed agreement complied with the statutory requirements for enterprise agreements under the Act, specifically whether it met the “better off overall test” and other criteria for approval.

The primary legal issues before the Commission were whether the agreement provided employees with a better overall package of pay and conditions than they would receive under the applicable award or existing agreements, and whether it adhered to the procedural requirements outlined in the Fair Work Act. The Commission had to determine whether the agreement met the criteria for approval, including ensuring it was fairly negotiated, provided for a safety net of minimum terms and conditions, and did not undermine the operation of the safety net provided by the applicable awards.

In assessing the agreement, the Commission examined the provisions of the proposed agreement against the existing award to ensure it met the better off overall test. The Commission considered the impact of the agreement on employee entitlements, including wages, hours of work, and other conditions of employment. The Commission also reviewed the negotiation process to ensure it was conducted fairly and in good faith. Ultimately, the Commission found that the agreement did provide employees with a better overall package of pay and conditions and was fairly negotiated, thereby meeting the statutory requirements for approval.

The Fair Work Commission approved the Sterling Concrete Constructions Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015, determining that it complied with the relevant provisions of the Fair Work Act. The decision confirmed the agreement's validity and effectiveness in governing the employment conditions of workers at Sterling Concrete Constructions Pty Ltd. The Commission's approval signified that the agreement met the necessary standards for better off overall and procedural fairness, ensuring the protection of employees' rights and interests within the framework of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established