Construction, Forestry, Mining and Energy Union

[2014] FWCA 861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3525)

BLACK CHILI INVESTMENTS PTY LTD T/AS BLACK CHILI COMMERCIAL 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 Black Chili Investments Pty Ltd T/As Black Chili Commercial 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 Black Chili Investments Pty Ltd T/As Black Chili Commercial 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

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CaseChat Overview and Summary

The parties in this case were the Construction, Forestry, Mining and Energy Union (CFMEU) and Black Chili Investments Pty Ltd T/As Black Chili Commercial. The dispute was about whether the Fair Work Commission (FWC) should approve a particular enterprise agreement between the parties. The case was heard in the Full Bench of the FWC. The central legal issues the court had to decide were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether the FWC had jurisdiction to approve the agreement. The court considered whether the agreement had been genuinely negotiated between the parties and whether it complied with the statutory requirements for enterprise agreements.

The FWC held that the agreement had not been genuinely negotiated between the parties and did not comply with the statutory requirements for enterprise agreements. The FWC found that the agreement did not adequately address the issues of the employees' hours of work, overtime, and penalty rates, and that it failed to provide for adequate consultation and negotiation between the parties. The FWC also held that it did not have jurisdiction to approve the agreement as it did not meet the requirements of the Act. The court found that the agreement was not a genuine enterprise agreement as it did not reflect the outcome of genuine negotiations between the parties and did not provide for adequate consultation and negotiation.

The FWC refused to approve the agreement. The court held that the agreement did not comply with the statutory requirements for enterprise agreements and did not reflect the outcome of genuine negotiations between the parties. The court also held that it did not have jurisdiction to approve the agreement as it did not meet the requirements of the Act. The FWC's decision was based on its findings that the agreement did not provide for adequate consultation and negotiation between the parties and did not adequately address the issues of the employees' hours of work, overtime, and penalty rates.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established