Construction, Forestry, Mining and Energy Union

[2014] FWCA 536

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3399)

FOSS, RYAN T/AS RYDIE CONSTRUCTION SOLUTIONS AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 22 JANUARY 2014

Application for approval of the Foss, Ryan T/As Rydie Construction Solutions 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 Foss, Ryan T/As Rydie Construction Solutions 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 29 January 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 sought approval for the Foss, Ryan T/As Rydie Construction Solutions and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 from the Fair Work Commission. The dispute centred on whether the agreement met the requirements for registration under the Fair Work Act 2009. The key issues before the court were whether the agreement contained all necessary clauses, was free from prohibited content, and whether it had been appropriately negotiated and agreed upon by the parties involved.

The Fair Work Commission considered the provisions of the Fair Work Act and the principles of good faith bargaining and enterprise bargaining. The court examined whether the agreement was genuinely negotiated, whether it contained all the prescribed minimum terms and conditions, and whether it complied with the Act's requirements. The court found that the agreement was indeed genuine and that it contained all necessary terms and conditions, including those related to minimum wages and conditions, redundancy, and dispute resolution.

The Fair Work Commission concluded that the agreement met all the statutory requirements and was in compliance with the Act. The court approved the agreement, finding it to be a fair and reasonable outcome for both parties. The decision underscored the importance of adhering to the legislative framework and the principles of good faith bargaining in the enterprise bargaining process. The court's approval of the agreement facilitated a stable and productive working relationship between the employer and the union.

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