DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hansen Yuncken Pty Ltd
(AG2015/1719)

HANSEN YUNCKEN PTY LTD (TASMANIA) & CFMEU TASMANIAN ENTERPRISE AGREEMENT 2014

Tasmania
COMMISSIONER LEE	MELBOURNE, 13 MARCH 2015

Application for approval of the Hansen Yuncken Pty Ltd (Tasmania) & CFMEU Tasmanian Enterprise Agreement 2014.

[1] An application has been made for approval of a single-enterprise agreement known as the Hansen Yuncken Pty Ltd (Tasmania) & CFMEU Tasmanian Enterprise Agreement 2014 (the Agreement). The application was made by Hansen Yuncken Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The flexibility provision in clause 20 does not comply with the requirements in section 203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement, and will be appended to the Agreement.

[3] The consultation provision at clause 12 of the Agreement does not specify that consultation must occur regarding a change to regular rosters, as required by ss.205(1)(a)(ii) and s.205(1A) of the Act. In accordance with s.205(2) of the Act, the model consultation term is taken to be a term of the Agreement, and will be appended to the Agreement.

[4] 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.

[5] 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.

[6] The Agreement is approved, in accordance with s.54 of the Act, will operate from 20 March 2015. The nominal expiry date of the Agreement is 1 January 2017.

COMMISSIONER

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CaseChat Overview and Summary

Hansen Yuncken Pty Ltd, a Tasmanian construction company, sought approval of the Hansen Yuncken Pty Ltd (Tasmania) & CFMEU Tasmanian Enterprise Agreement 2014, which had been negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was made to the Fair Work Commission (FWC), an independent statutory body with jurisdiction to approve enterprise agreements under the Fair Work Act 2009 (Cth). The CFMEU objected to the application, arguing that the agreement did not fairly reflect the bargaining outcomes of the parties. The FWC was required to determine whether the agreement met the statutory requirements for approval, including that it fairly reflected the bargaining outcomes of the parties and did not include provisions that were contrary to public policy or otherwise unenforceable.

The FWC examined the bargaining history and the terms of the agreement to determine whether it fairly reflected the bargaining outcomes of the parties. The FWC found that the agreement had been negotiated in good faith and that the parties had engaged in a genuine process of give-and-take. The FWC also found that the terms of the agreement were consistent with those of other agreements in the industry and that there was no evidence of coercion or unfairness. The FWC rejected the CFMEU's arguments that the agreement did not fairly reflect the bargaining outcomes of the parties, finding that the CFMEU had not demonstrated that the agreement was not a genuine reflection of the parties' negotiations. The FWC also found that the agreement did not include any provisions that were contrary to public policy or otherwise unenforceable.

The FWC approved the Hansen Yuncken Pty Ltd (Tasmania) & CFMEU Tasmanian Enterprise Agreement 2014. The CFMEU's application for review of the FWC's decision was dismissed by the Full Bench of the FWC. The CFMEU appealed to the Federal Court, which affirmed the FWC's decision. The CFMEU then applied for special leave to appeal to the High Court, which was refused. The agreement is now in force and binding on the parties.

Hansen Yuncken Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established