Stabilime Distributors Pty Ltd

[2014] FWCA 433

[2014] FWCA 433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Stabilime Distributors Pty Ltd
(AG2014/3381)

THE LONGFORD GAS CONDITIONING PLANT PROJECT CONSTRUCTION AGREEMENT 2013 BETWEEN STABILIME DISTRIBUTORS PTY LTD AND THE CFMEU

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 17 JANUARY 2014

Application for approval of The Longford Gas Conditioning Plant Project Construction Agreement 2013 between Stabilime Distributors Pty Ltd and the CFMEU.

[1] An application has been made for approval of an enterprise agreement known as The Longford Gas Conditioning Plant Project Construction Agreement 2013 between Stabilime Distributors Pty Ltd and the CFMEU (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by A&D Services Pty Ltd. 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 employee organisation which will be covered by the Agreement.

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

[4] In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union (CFMEU), the relevant employee organisation which will be covered by the Agreement, is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to work to be performed under the Agreement; and it is in the public interest to approve the Agreement in order to provide certainty as to employment terms and conditions, in the terms agreed between the parties.

[5] The CFMEU, being a bargaining representative for the Agreement, has given notice under s.185 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[6] The Agreement does not contain a consultation clause. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 1 is taken to be a term of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 January 2014. The nominal expiry date of the Agreement is 16 January 2018.

ANNEXURE A

Schedule 2.3 Model consultation term
(regulation 2.09)
Model consultation term
(1) This term applies if:
(a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and
(b) the change is likely to have a significant effect on employees of the enterprise.
(2) The employer must notify the relevant employees of the decision to introduce the major change.
(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.
(4) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.
(5) As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion — provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(8) If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.
(9) In this term, a major changeis likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
(10) In this term, relevant employees means the employees who may be affected by the major change.

 1 Section 2.09 and Schedule 2.3 of the Fair Work Regulations 2009

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