Construction, Forestry, Mining and Energy Union (New South Wales Branch)

[2013] FWCA 1428

[2013] FWCA 1428

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union (New South Wales Branch)
(AG2012/13078)

CHRISTIES PEOPLE PTY. LTD. / CFMEU COLLECTIVE AGREEMENT 2012 - 2014

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 7 MARCH 2013

Application for approval of the Christies People Pty. Ltd. / CFMEU Collective Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Christies People Pty. Ltd. / CFMEU Collective Agreement 2012 - 2014 (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.

Better off overall test

[2] The ordinary hours of work at clause 28.1.2 of the Agreement prescribe the hours as between 6:00am and 6:00pm. The Building and Construction General On-site 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, prescribes the ordinary hours at clause 33.1 as between 07:00am and 6:00pm, Monday to Friday although agreement between the employer and employees can be reached to start at 06:00am via subclause 33(a)(1)(viii). The Construction, Forestry, Mining and Energy Union (CFMEU) have advised that the wage rates and allowances in the Agreement being higher than the Award compensate for any loss of penalties due to the extended ordinary hours in the Agreement. While the employer did not provide the Commission with a response on this issue, I am satisfied based on the CFMEU’s submission the Agreement meets the better off overall test as required by s.186(2)(d) of the Act.

Voting Process

[3] Section 182(2) of the Act provides that an agreement is made when employees that will be covered by the agreement have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement. The employer’s statutory declaration (Form 17) signed by Mr Anthony Barrington as Company Director, states that 100 employees are to be covered by the Agreement of whom all voted to approve the Agreement.

[4] The employer has subsequently advised that only three employees cast a vote and the 97 employees who did not cast a vote were deemed to have voted to approve the Agreement. There is no ability under the Act or the voting process to deem those who do not cast a vote as having voted to approve the Agreement.

[5] The record indicates that three of the 100 employees covered by the Agreement voted to approve the Agreement, as this is a majority of those who cast a vote the Agreement is validly made.

[6] 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.

[7] 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.

[8] 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.

[9] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 14 March 2013. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

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