The Trustee for the Masci Family Trust T/A GSM Projects Pty Ltd Summary

[2014] FWCA 2553

FAIR WORK COMMISSION

DECISION

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

The Trustee for the Masci Family Trust T/A GSM Projects Pty Ltd
(AG2014/4110)

GSM PROJECTS 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 GSM Projects 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 GSM Projects 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 The Trustee for the Masci Family Trust T/A GSM Projects 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] 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.

[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 23 April 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Trustee for the Masci Family Trust trading as GSM Projects Pty Ltd, who brought an application to the Fair Work Commission (FWC) seeking approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The applicant, GSM Projects Pty Ltd, is a construction company, while the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) represents the employees. The legal dispute centres on whether the terms of the enterprise agreement comply with the requirements set out in the Fair Work Act 2009.

The primary legal issues that the FWC had to address were whether the enterprise agreement met the necessary conditions for approval, including the absence of prohibited content, the presence of essential protections, and whether the agreement was genuinely negotiated. Specifically, the FWC needed to determine if the agreement was made in good faith and if it contained all the prescribed minimum terms and conditions of employment. The FWC also had to consider whether the agreement was consistent with the principles of the Fair Work Act and if it provided for a fair and effective means of resolving workplace disputes.

The FWC found that the enterprise agreement was generally in compliance with the statutory requirements. The Commission noted that the agreement contained all the prescribed minimum terms and conditions and was free of prohibited content. Furthermore, the FWC concluded that the agreement was genuinely negotiated and made in good faith. The evidence presented showed that the parties had engaged in meaningful negotiations, and the terms reflected a balanced approach to the interests of both employers and employees. The FWC also determined that the agreement provided for an effective means of resolving workplace disputes, including the establishment of a dispute resolution framework. Consequently, the FWC approved the enterprise agreement, finding it to be fair and appropriate for the employees covered by it.

The final orders of the FWC were that the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered and published, and it would have legal effect from the date of registration. The decision affirmed the validity of the enterprise agreement, providing clarity and certainty for both GSM Projects Pty Ltd and the CFMEU in relation to their industrial relations obligations.

The Trustee for the Masci Family Trust T/A GSM Projects Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established