DECISION

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

Moliga Constructions Pty Ltd
(AG2015/1717)

MOLIGA CONSTRUCTIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 2 FEBRUARY 2015

Application for approval of the Moliga Constructions 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 Moliga Constructions 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 Moliga Constructions Pty Ltd. The agreement is a single-enterprise agreement.

[2] 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.

[3] In my view, the Consultative 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] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[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 9 February 2015. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Moliga Constructions Pty Ltd applied for approval of the Moliga Constructions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which raised objections to the agreement on several grounds. The Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009 and if it was in the best interests of the employees.

The central legal issues revolved around whether the agreement complied with the procedural and substantive fairness requirements set out in the Fair Work Act. The Commission had to assess whether the agreement was negotiated in good faith and whether it contained terms that were consistent with the provisions of the Act. Additionally, the Commission needed to consider whether the agreement provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement.

The Commission carefully reviewed the evidence and submissions provided by both parties. It found that the agreement was negotiated in good faith and contained terms that were fair and reasonable. The Commission was satisfied that the agreement met all the requirements of the Fair Work Act and was in the best interests of the employees. As a result, the Commission approved the agreement, confirming its validity and enforceability under the Act.

The final orders of the Commission included the approval of the Moliga Constructions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, effective from the date of the decision. The Commission directed that the agreement be registered with the Fair Work Commission and that it be given effect in accordance with the provisions of the Fair Work Act. The decision was made on the basis that the agreement complied with all the legal requirements and was in the best interests of the employees.

Moliga Constructions Pty Ltd

DECISION

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