Construction, Forestry, Mining and Energy Union

[2014] FWCA 538

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3402)

AUSINSTALL INVESTMENTS PTY LTD 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 Ausinstall Investments 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 Ausinstall Investments 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 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

The matter under consideration involved Ausinstall Investments Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred around the application for approval of the Ausinstall Investments Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. This case was heard in the Fair Work Commission. The primary legal issues the court needed to address were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and if it was in the best interests of the employees.

The court examined the agreement clause by clause, assessing its compliance with the statutory requirements outlined in the Fair Work Act 2009. The court considered whether the agreement met the criteria for genuine bargaining, whether it contained all the prescribed terms, and whether it provided for a fair and reasonable outcome for the employees. The court also evaluated whether the agreement was in the best interests of the employees, taking into account factors such as the agreement's provisions on wages, hours of work, and other working conditions.

After a thorough examination of the agreement, the court determined that it met the statutory requirements and was in the best interests of the employees. The court found that the agreement was the product of genuine bargaining between the parties, contained all the prescribed terms, and provided for a fair and reasonable outcome for the employees. The court approved the agreement, emphasising the importance of fair and reasonable agreements in the building and construction industry.

The court's decision was that the Ausinstall Investments Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 should be approved. The court's approval of the agreement ensures that it will be legally binding and enforceable, providing stability and certainty for both employers and employees in the building and construction industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established