Maximum Concrete Pumping Pty Ltd Summary

[2014] FWCA 3542

FAIR WORK COMMISSION

DECISION

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

Maximum Concrete Pumping Pty Ltd
(AG2014/6139)

MAXIMUM CONCRETE PUMPING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 28 MAY 2014

Application for approval of the Maximum Concrete Pumping 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 Maximum Concrete Pumping 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 Maximum Concrete Pumping 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] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] 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).

[5] 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.

[6] 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.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54, will operate from 4 June 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Maximum Concrete Pumping Pty Ltd was involved in an application for the approval of a proposed enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was brought before the Fair Work Commission, which was tasked with determining whether the proposed agreement met the necessary legislative requirements. The central issue before the Commission was whether the agreement complied with the relevant provisions of the Fair Work Act 2009, specifically in terms of the proper procedures followed in reaching the agreement and whether the agreement was genuinely a product of a bargain between the parties.

The Commission examined the evidence presented regarding the process followed in the negotiation and finalisation of the agreement. The Court considered the evidence of the union's conduct, the employer's stance, and the manner in which the agreement was communicated to the employees. The primary focus was on whether the agreement was the product of genuine bargaining, free from any coercion or undue influence. After reviewing the submissions and evidence, the Commission concluded that the agreement had been properly negotiated and was not the result of any improper conduct.

As a result of this finding, the Commission approved the proposed enterprise agreement, deeming it to be in compliance with the Fair Work Act. The Commission's decision was based on the evidence presented, which demonstrated that the agreement had been reached through proper and lawful processes. The Fair Work Commission's decision provided certainty to both parties regarding the validity of the enterprise agreement.

Maximum Concrete Pumping Pty Ltd

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