Construction, Forestry, Mining and Energy Union

[2013] FWCA 634

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/12977)

TOWN AND COUNTRY CRANE HIRE PTY LTD / CFMEU COLLECTIVE AGREEMENT 2012 - 2015

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 29 JANUARY 2013

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

[1] An application has been made for approval of an enterprise agreement known as the Town and Country 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 a starting time between 6:00am to 8:00am. The Building and Construction General On-site Award 2010 (the Award) provides for an ordinary span of hours from 7:00am 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 Appendix B of the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours.

Flexibility term

[3] The Commission questioned the operation of clause 41 - Flexibility for the purposes of s202 of the Fair Work Act 2009, and in particular, subclause 34.1 of the Agreement. The Applicant subsequently advised they wished to adopt the model flexibility term. Pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

[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 that organisation.

[7] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 5 February 2013. The nominal expiry date of the Agreement is 31 May 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for the approval of a collective agreement between the union and Town and Country Crane Hire Pty Ltd. The case was heard in the Fair Work Commission. The CFMEU sought to have the agreement, which was negotiated between the union and the employer, formally approved as a registered agreement under the Fair Work Act 2009. The employer did not oppose the application but requested certain amendments to the agreement before approving it.

The court was required to determine whether the proposed agreement met the legal requirements for approval under the Fair Work Act. Specifically, the court needed to consider whether the agreement contained the necessary provisions to be a registered agreement, including the minimum requirements outlined in section 232 of the Act, and whether it complied with the good faith bargaining provisions in section 228 of the Act. The court also needed to assess whether any changes were necessary to ensure the agreement met the legal standards for approval.

In its decision, the court found that the proposed agreement contained all the necessary provisions to be a registered agreement under the Fair Work Act. The court noted that the agreement included provisions on minimum rates of pay, penalty rates, leave entitlements, and other standard terms and conditions of employment. The court also found that the agreement was the product of good faith bargaining between the parties, as required by the Act. However, the court did make some minor amendments to the agreement to ensure it met the legal standards for approval. These changes included clarifying certain provisions and ensuring that the agreement was consistent with relevant industrial instruments.

The court approved the agreement with the minor amendments made. The approved agreement was registered under the Fair Work Act, and became a legally binding contract between the employer and the union. The decision of the court provides guidance on the requirements for approving collective agreements under the Fair Work Act and the importance of good faith bargaining in the negotiation process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established