Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 537

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3400)

PLASTERLYNX PTY LTD AND THE CFMEU PLASTERING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Plasterlynx Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Plasterlynx Pty Ltd and the CFMEU Plastering 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

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CaseChat Overview and Summary

Plasterlynx Pty Ltd applied for the approval of the Plastering Industry Enterprise Agreement 2011-2015 with the Construction, Forestry, Mining and Energy Union. The Fair Work Commission was asked to assess the application under the Fair Work Act 2009. The primary dispute centred on whether the agreement met the legal requirements for approval, specifically whether it complied with the provisions of the Fair Work Act concerning the negotiation, content, and registration of enterprise agreements.

The court had to determine if the agreement was genuinely negotiated, if it adhered to the prescribed terms and conditions set out in the Act, and if it contained any provisions that would be contrary to public policy. A key issue was whether certain provisions of the agreement, particularly those relating to wages and conditions, were fairly and reasonably negotiated and met the criteria for being "better off overall" for the employees.

The Commission examined the process by which the agreement was negotiated and the content of the agreement itself. It found that the negotiation process was genuine and that the agreement contained provisions that were fair and reasonable. The Commission concluded that the agreement met all statutory requirements and did not contravene any public policy considerations. The court approved the agreement, finding it to be in the best interests of the employees and compliant with the Act.

The Fair Work Commission approved the Plastering Industry Enterprise Agreement 2011-2015. The Commission's decision was based on the finding that the agreement was genuinely negotiated, met the statutory criteria, and did not contain any provisions that were contrary to public policy. The approval was effective from the date of the decision, allowing the agreement to be registered and enforced under the Fair Work Act.

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