Construction, Forestry, Mining and Energy Union

[2014] FWCA 863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3543)

BAO UNIT TRUST (THE TRUSTEE FOR) T/AS BAO ENGINEERING 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 Bao Unit Trust (The Trustee for) T/As Bao Engineering 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 Bao Unit Trust (The Trustee for) T/As Bao Engineering 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 applicant, the Construction, Forestry, Mining and Energy Union (CFMEU), sought approval of the Bao Unit Trust (The Trustee for) T/As Bao Engineering and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Fair Work Commission was the court in this matter. The dispute centred around the validity and approval of the enterprise agreement between the CFMEU and Bao Engineering, specifically regarding certain provisions that were alleged to be contrary to the public interest.

The legal issues that the Commission was required to decide included whether the provisions of the agreement were contrary to the public interest, whether the agreement complied with the Fair Work Act 2009, and whether the agreement was made in good faith and for the purposes of establishing the principles for future regulation of the relationship between the parties. The Commission also had to consider whether the agreement contained provisions that were contrary to the public interest, particularly in relation to the proposed exclusion of certain employees from the agreement.

The Commission found that several provisions of the agreement were contrary to the public interest and did not comply with the Fair Work Act. The Commission noted that the exclusion of certain employees from the agreement was not in good faith and was not for the purposes of establishing the principles for future regulation of the relationship between the parties. The Commission also found that the agreement contained provisions that were contrary to the public interest, particularly in relation to the proposed exclusion of certain employees from the agreement. The Commission did not grant approval of the agreement and directed the parties to negotiate a new agreement that complied with the law and was in the public interest.

The Commission ordered that the application for approval of the agreement be dismissed and that the parties be directed to negotiate a new agreement that complied with the law and was in the public interest. The Commission also ordered that the parties provide a report to the Commission within 30 days of the decision outlining the steps they had taken to negotiate a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established