DECISION

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

Willard Logistics Pty Ltd T/A Geelong Concrete Pumpers
(AG2015/1701)

GEELONG CONCRETE PUMPING AND THE CFMEU CONCRETE PUMPERS INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 4 FEBRUARY 2015

Application for approval of the Geelong Concrete Pumping and the CFMEU Concrete Pumpers Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Geelong Concrete Pumping and the CFMEU Concrete Pumpers 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 Willard Logistics Pty Ltd T/A Geelong Concrete Pumpers. 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 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).

[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 11 February 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

The applicant, Willard Logistics Pty Ltd trading as Geelong Concrete Pumpers, applied to the Fair Work Commission for approval of the Geelong Concrete Pumping and the CFMEU Concrete Pumpers Industry Enterprise Agreement 2011-2015. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union, which raised concerns about the adequacy of the agreement’s provisions. The matter was heard by the Fair Work Commission, which was required to determine whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issue before the Commission was whether the provisions of the enterprise agreement complied with the mandatory requirements of the Fair Work Act, particularly in relation to the minimum entitlements of employees. This included assessing whether the agreement provided for fair and reasonable terms and conditions, and whether it adhered to the provisions regarding minimum wages, penalty rates, and other employment standards. The Commission also considered whether the agreement had been genuinely negotiated and whether it met the "better off overall test," which requires that employees are not worse off under the new agreement compared to their previous conditions.

The Fair Work Commission determined that the Geelong Concrete Pumping and the CFMEU Concrete Pumpers Industry Enterprise Agreement 2011-2015 was compliant with the statutory requirements of the Fair Work Act. The Commission found that the agreement provided for fair and reasonable terms and conditions, and that it met the better off overall test. The Commission was satisfied that the agreement had been genuinely negotiated between the parties and that it provided for minimum entitlements that were in line with the provisions of the Act. Accordingly, the Commission approved the enterprise agreement, finding it to be a lawful and valid agreement between the parties.

The Fair Work Commission approved the Geelong Concrete Pumping and the CFMEU Concrete Pumpers Industry Enterprise Agreement 2011-2015, effective from 1 July 2011 to 30 June 2015. The Commission’s decision was based on its finding that the agreement met the mandatory requirements of the Fair Work Act, and that it provided for fair and reasonable terms and conditions for employees. The decision also recognised the importance of the agreement in providing for the fair and efficient operation of the industry. The approval of the enterprise agreement ensures that employees in the Geelong concrete pumping industry are provided with appropriate protections and entitlements under the law.

Willard Logistics Pty Ltd T/A Geelong Concrete Pumpers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established