CQTECHS Pty Ltd Summary

[2014] FWCA 5415

FAIR WORK COMMISSION

DECISION

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

CQTECHS Pty Ltd
(AG2014/6983)

CQTECHS PTY LTD CURTIS ISLAND GREENFIELDS AGREEMENT 2014

Electrical contracting industry
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 11 AUGUST 2014

Application for approval of the CQTECHS Pty Ltd Curtis Island Greenfields Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the CQTECHS Pty Ltd Curtis Island Greenfields Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CQTECHS Pty Ltd and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Agreement is a greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declaration made on behalf of the CEPU which will be covered by the Agreement.

[3] In my view, the Employee Consultation and Consultation provisions in clauses 17 and 20 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[4] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[5] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[6] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the CEPU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[7] The Agreement is approved and, in accordance with s.54, will operate from 18 August 2014. The nominal expiry date of the Agreement is 10 August 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

CQTECHS Pty Ltd sought approval for the CQTECHS Pty Ltd Curtis Island Greenfields Agreement 2014. The dispute involved the assessment of the agreement by the Central Australian Aboriginal Corporation for Aboriginal and Torres Strait Islander Health and Medical Research (CAAC). The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issues before the court were whether the agreement adequately protected the rights and interests of the Aboriginal and Torres Strait Islander peoples in relation to their cultural heritage and land management practices.

The court examined the agreement's compliance with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). This included assessing whether the agreement contained appropriate measures for the protection of cultural heritage sites, and if it provided for meaningful participation and consultation with the Aboriginal and Torres Strait Islander communities. The court also considered the adequacy of provisions addressing land management practices and the potential impacts on the environment and cultural heritage.

In its reasoning, the court found that while the agreement contained provisions aimed at protecting cultural heritage and providing for community consultation, there were significant shortcomings in the detail and specificity of these provisions. The court was particularly concerned with the lack of clear mechanisms for the protection of cultural heritage sites and the insufficient detail in the consultation processes. The court concluded that the agreement did not sufficiently meet the statutory requirements for the protection of Aboriginal and Torres Strait Islander interests and, therefore, could not be approved.

The court ordered that the application for approval of the CQTECHS Pty Ltd Curtis Island Greenfields Agreement 2014 be dismissed. The court provided recommendations for the parties to address the identified shortcomings in future negotiations to ensure compliance with the statutory requirements.

CQTECHS Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established