Construction, Forestry, Mining and Energy Union

[2014] FWCA 533

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3395)

MANOR TILING GROUP PTY LTD AND THE CFMEU TILELAYERS ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Manor Tiling Group Pty Ltd and the CFMEU Tilelayers Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Manor Tiling Group Pty Ltd and the CFMEU Tilelayers 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

CaseChat Overview and Summary

The case before the Fair Work Commission (FWC) involved the Construction, Forestry, Mining and Energy Union (CFMEU) and the Manor Tiling Group Pty Ltd. The dispute centred on the approval of the Tilelayers Enterprise Agreement 2011-2015. The FWC was tasked with determining whether the agreement met the necessary criteria for registration under the Fair Work Act 2009. The CFMEU sought approval of the agreement on behalf of its members employed by Manor Tiling Group, while the employer contested certain aspects of the agreement, arguing it did not comply with the legislative requirements.

The primary legal issues before the FWC involved whether the enterprise agreement satisfied the procedural and substantive requirements set out in the Fair Work Act. Procedurally, the FWC needed to assess if the agreement had been made in accordance with the prescribed processes, including whether the union had genuinely bargained for the agreement on behalf of the employees. Substantively, the FWC had to determine if the agreement contained the appropriate terms and conditions that met the Fair Work Act's minimum standards, including provisions for minimum wages, leave entitlements, and other essential conditions of employment.

In its decision, the FWC found that the agreement had been made following the correct procedures, with evidence demonstrating that the union had genuinely negotiated on behalf of the employees. The FWC also held that the agreement contained all the necessary minimum terms and conditions, including provisions for wages, leave, and other employment standards. Therefore, the FWC approved the Tilelayers Enterprise Agreement 2011-2015, finding it met all the statutory requirements for registration.

The FWC's final order was to approve the Manor Tiling Group Pty Ltd and CFMEU Tilelayers Enterprise Agreement 2011-2015. This decision ensured that the agreement would be registered and enforceable, providing certainty and stability to the employment relationship between the union, the employer, and the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established