Construction, Forestry, Mining and Energy Union

[2014] FWCA 539

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/3403)

ALYNCO DEVELOPMENTS PTY LTD T/AS ELEVATOR BUILDING SITE SERVICES 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 Alynco Developments Pty Ltd T/As Elevator Building Site Services 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 Alynco Developments Pty Ltd T/As Elevator Building Site Services 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

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the Alynco Developments Pty Ltd T/As Elevator Building Site Services and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The applicant, Alynco Developments, sought the court's approval of the agreement as a protected action ballot was conducted and the requisite majority of employees voted in favour of the agreement. The respondent, the CFMEU, opposed the application on the grounds that the ballot was not properly conducted.

The central legal issues that the court was required to decide were whether the ballot was properly conducted, and whether the majority vote of employees in favour of the agreement was correctly determined. The court needed to assess whether the ballot complied with the relevant provisions of the Fair Work Act 2009 (Cth) and whether the result accurately reflected the employees' wishes.

The court examined the evidence presented regarding the conduct of the ballot and found that it did not comply with the requirements of the Fair Work Act. The court held that the ballot did not provide sufficient information to the employees, and the process did not ensure that the employees' votes were secret and free from coercion. As a result, the court determined that the majority vote in favour of the agreement was invalid. Consequently, the application for approval of the enterprise agreement was dismissed.

The court ordered that the application for approval of the Alynco Developments Pty Ltd T/As Elevator Building Site Services and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be dismissed. The court further ordered that a new ballot be conducted in accordance with the provisions of the Fair Work Act to accurately determine the employees' wishes regarding the proposed agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established