Construction, Forestry, Mining and Energy Union-Construction and General Division Summary

[2013] FWCA 669

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union-Construction and General Division
(AG2012/13180)

H. HASSARATI & CO PTY LTD / CFMEU COLLECTIVE AGREEMENT 2012 - 2015

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 31 JANUARY 2013

Application for approval of the H. Hassarati & Co Pty Ltd / CFMEU Collective Agreement 2012 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the H. Hassarati & Co 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 6:00am to 6:00pm. 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 35 - Flexibility for the purposes of s202 of the Fair Work Act 2009, 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 7 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 Construction, Forestry, Mining and Energy Union-Construction and General Division was a party to an application for the approval of a collective agreement with H. Hassarati & Co Pty Ltd for the period 2012-2015. The application was heard by the Fair Work Commission. The nature of the dispute was the negotiation and approval of terms and conditions of employment for workers under the agreement.

The legal issues before the Commission were whether the collective agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the provisions concerning minimum wages and conditions, and whether the agreement met the standards of procedural fairness. The Commission had to determine whether the agreement was made in good faith and whether it contained terms that were not contrary to public policy.

The Commission found that the collective agreement was largely compliant with the Fair Work Act, with only minor issues that could be resolved through minor amendments. The Commission noted that the agreement contained provisions for minimum wages and conditions that were in line with the relevant awards and the National Employment Standards. The Commission also found that the agreement was made in good faith and did not contain any terms that were contrary to public policy. The Commission was satisfied that the process of negotiating and finalising the agreement was fair and transparent.

The Commission approved the collective agreement subject to certain minor amendments to ensure compliance with the Fair Work Act. The approval was granted on the basis that the agreement would provide for fair and reasonable terms and conditions of employment for the workers covered by the agreement. The parties were directed to make the necessary amendments and lodge the amended agreement with the Commission within a specified timeframe.

Construction, Forestry, Mining and Energy Union-Construction and General Division

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established