Devco Project and Construction Management Pty Ltd Summary

[2014] FWCA 2564

FAIR WORK COMMISSION

DECISION

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

Devco Project and Construction Management Pty Ltd
(AG2014/5630)

DEVCO PROJECT AND CONSTRUCTION MANAGEMENT PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 16 APRIL 2014

Application for approval of the Devco Project and Construction Management Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Devco Project and Construction Management Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Devco Project and Construction Management Pty Ltd. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] In my view, the Consultation Mechanisms provision in clause 8 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] 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 the organisation.

[7] The Agreement is approved and, in accordance with s.54, will operate from 23 April 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, Devco Project and Construction Management Pty Ltd applied for approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was opposed by several unions, including the Construction, Forestry, Maritime, Mining and Energy Union. The primary dispute centred on whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009, particularly focusing on the agreement's coverage, its impact on employees, and whether it met the ‘better off overall test’ and other statutory requirements.

The Commission examined whether the agreement was appropriately scoped, whether it provided for minimum terms and conditions of employment that were no less favourable than the relevant award, and if it met the statutory ‘better off overall test’. This involved assessing whether the proposed agreement provided for a majority of employees to be better off overall than they would be under the relevant award or modern award. The Commission also considered the impact of the agreement on employees' rights and obligations, and whether the agreement facilitated or hindered the ability of employees to exercise their rights under the Fair Work Act.

The Fair Work Commission found that the proposed enterprise agreement did not meet the statutory requirements for approval. The Commission determined that the agreement did not provide for employees to be better off overall, as it contained terms that were less favourable than the relevant award. Additionally, the Commission found that the agreement did not appropriately scope the coverage of the agreement, which was necessary to ensure that the agreement covered all employees intended to be bound by it. Consequently, the application for approval was dismissed.

As a result of the decision, the Fair Work Commission did not grant approval for the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The agreement was not deemed to meet the necessary statutory criteria and therefore could not be implemented. The decision underscored the importance of ensuring that enterprise agreements provide for employees to be better off overall and are appropriately scoped to cover all intended employees.

Devco Project and Construction Management Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established