Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3523)

STEELPLEX 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 Steelplex 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 Steelplex 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 involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Steelplex Pty Ltd. The dispute centred around the application for approval of the Steelplex Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The matter was heard in the Fair Work Commission.

The central legal issue was whether the agreement met the requirements of section 234 of the Fair Work Act 2009, which mandates that an enterprise agreement must not have the purpose, or the effect, of prohibiting or restricting the ability of an employee to perform the duties and exercise the powers of their job. The court needed to determine if the agreement's provisions were consistent with this statutory requirement.

In its decision, the Commission held that the agreement did not contravene section 234 of the Act. The Commission found that the provisions of the agreement did not restrict the ability of employees to perform the duties and exercise the powers of their job. Instead, the agreement was designed to provide fair and reasonable terms for the employees, including provisions for their protection and welfare. The Commission approved the application for the agreement's registration.

The court's decision was based on a detailed analysis of the agreement's provisions and their potential impact on employees' ability to perform their job duties. The court considered the parties' submissions and the evidence presented, and concluded that the agreement was consistent with the statutory requirements. The court approved the registration of the agreement, allowing it to come into effect and be binding on the parties.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established