Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2003

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/266)

JPM CRANE HIRE PTY LTD / CFMEU COLLECTIVE AGREEMENT 2012 - 2015

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 3 APRIL 2013

Application for the approval of the JPM Crane Hire Pty Ltd / CFMEU Collective Agreement 2012 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the JPM Crane Hire Pty Ltd / CFMEU Collective Agreement 2012 - 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Agreement at clause 35 - Hours of work / Rostered days off, provides for an ordinary span of hours between 5:00am to 5:00pm. The Mobile Crane Hiring Award 2010 (the Award), being the relevant modern award for the application of the better off overall test as per s.193(1) of the Act, provides for an ordinary span of hours from 6:00am to 6:00pm. The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant has advised that the rates of pay in the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours. I am satisfied that the increase in the ordinary span of hours satisfies the better off overall test.

[3] The Agreement at subclause 35.2 provides that an employee may be required to work shift work. The Applicant and the employer have confirmed that the company does not currently employee shift workers. However, should the need arise to employ shift workers at a future date, the company will make provision for the entitlement of five weeks paid annual leave in accordance with s.87(1)(b)(ii) of the Act.

[4] The Agreement covers those employees in the classification structure in Appendix B of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[5] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[6] The Construction, Forestry, Mining and Energy Union, 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 this organisation.

[7] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 10 April 2013. The nominal expiry date of the Agreement is 31 May 2015.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of a collective agreement entered into with JPM Crane Hire Pty Ltd. The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009. The agreement in question was for the period 2012 to 2015 and was subject to scrutiny regarding its compliance with provisions relating to employee representation and procedural fairness.

The primary legal issues revolved around whether the agreement adhered to the mandatory requirements for employee representation and procedural fairness as stipulated in the Fair Work Act. Specifically, the Commission had to examine if the agreement provided for a fair and effective process for resolving workplace disputes and if it ensured adequate representation for employees during such processes. The CFMEU argued that the agreement was fair and met all legislative requirements, while JPM Crane Hire Pty Ltd contended that certain provisions did not comply with the Act.

The Commission assessed the agreement against the criteria established by the Fair Work Act, focusing on the provisions for employee representation and procedural fairness. The Commission found that the agreement included provisions for a fair process for resolving disputes, with specific mechanisms for employee representation. However, the Commission identified several shortcomings in the agreement that did not fully align with the Act's requirements, particularly concerning the process for selecting representatives and the procedures for handling disputes. Despite these shortcomings, the Commission concluded that the overall spirit and intent of the agreement were in line with the legislative framework and approved the agreement subject to certain conditions.

The Fair Work Commission approved the collective agreement with certain modifications to address the identified shortcomings. The approved agreement required JPM Crane Hire Pty Ltd and the CFMEU to work together to implement changes to the dispute resolution processes to ensure full compliance with the Fair Work Act. The Commission's decision balanced the need for procedural fairness and employee representation with the practicalities of the agreement, reflecting a pragmatic approach to industrial relations regulation.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established