DECISION

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

Wall Tech Panels Pty Ltd
(AG2015/2093)

WALL TECH PANELS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 12 MARCH 2015

Application for approval of the Wall Tech Panels 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 Wall Tech Panels 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 Wall Tech Panels Pty Ltd. The agreement is a single-enterprise agreement.

[2] 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).

[3] 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.

[4] 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.

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

[6] 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.

[7] The Agreement is approved and, in accordance with s.54, will operate from 19 March 2015. 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

Wall Tech Panels Pty Ltd applied for the approval of the Wall Tech Panels Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The parties to the dispute were Wall Tech Panels Pty Ltd, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the union representing the employees. The matter was heard in the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The dispute centred on whether the proposed enterprise agreement complied with the statutory requirements for approval and whether it met the "better off overall test" under the Fair Work Act.

The court needed to determine whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act, including whether it was made in good faith and whether it met the better off overall test. The better off overall test requires that the agreement must be "no less favourable" to employees than the applicable award or safety net. The court examined whether the terms of the agreement were fairly negotiated and whether they provided employees with protections that were at least as favourable as those provided by the relevant award.

The Fair Work Commission found that the agreement was fairly negotiated and met the better off overall test. The Commission noted that the agreement provided employees with protections that were at least as favourable as those provided by the relevant award, including provisions for wages, penalties, and leave. The Commission also found that the agreement was made in good faith and complied with the statutory requirements for approval. The Commission approved the agreement, which will now apply to the employees of Wall Tech Panels Pty Ltd for the period 2011-2015.

The Fair Work Commission approved the Wall Tech Panels Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The agreement provides employees with protections that are at least as favourable as those provided by the relevant award and was found to be fairly negotiated and made in good faith. The approval of the agreement ensures that employees of Wall Tech Panels Pty Ltd will have a legally binding enterprise agreement for the period 2011-2015.

Wall Tech Panels Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established