Construction, Forestry, Mining and Energy Union

[2013] FWCA 1375

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/12976)

MELROSE CRANES & RIGGING PTY LTD / CFMEU COLLECTIVE AGREEMENT 2012 - 2015

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 5 MARCH 2013

Application for approval of the Melrose Cranes & Rigging Pty Ltd / CFMEU Collective Agreement 2012 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the Melrose Cranes & Rigging 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 29 - 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) provides for an ordinary span of hours from 6:00am to 6:00pm. Upon receipt of the Applicant’s response with respect to the span of ordinary hours the Commission held a conference. The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant and the employer have advised that the rates of pay in Appendix B of 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 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.

[4] 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.

[5] 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.

[6] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 12 March 2013. The nominal expiry date of the Agreement is 31 May 2015.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in the application were Melrose Cranes & Rigging Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The matter pertained to the approval of a collective agreement between the parties for the period 2012 to 2015. The dispute was heard by the Fair Work Commission (FWC), which has jurisdiction over such applications. The primary legal issue before the FWC was whether the terms and conditions outlined in the proposed collective agreement were consistent with the provisions of the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement complied with the 'better off overall test', which requires that employees be no worse off financially and preferably better off overall when compared to their previous conditions.

The FWC examined various aspects of the agreement, including wages, penalty rates, leave provisions, and other employment conditions. In assessing compliance with the 'better off overall test', the FWC considered the financial implications for employees, the impact on workplace productivity and flexibility, and whether the terms provided a fair and reasonable balance of benefits and obligations for both parties. The FWC also took into account any potential detriments to employees' rights and protections under the Fair Work Act. After thorough deliberation and analysis of the evidence and arguments presented, the FWC found that the proposed agreement met the requirements of the Act and approved the collective agreement.

Consequently, the application for approval of the Melrose Cranes & Rigging Pty Ltd / CFMEU Collective Agreement 2012 - 2015 was successful. The FWC's decision was based on the conclusion that the agreement provided a fair and reasonable set of terms and conditions that did not adversely affect employees and, in many cases, improved their conditions. The final order of the FWC was the approval of the collective agreement, effective from the specified period of 2012 to 2015, subject to the terms and conditions as outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established