Zaganite Coating Services Pty Ltd

[2014] FWCA 1965

FAIR WORK COMMISSION

DECISION

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

Zaganite Coating Services Pty Ltd
(AG2014/4014)

ZAGANITE COATING SERVICES PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 24 MARCH 2014

Application for approval of the Zaganite Coating Services 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 Zaganite Coating Services 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 Zaganite Coating Services 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 31 March 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

In the matter of the Fair Work Commission, Zaganite Coating Services Pty Ltd, an applicant, was involved in a dispute over the approval of the Zaganite Coating Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Building and Construction Industry Enterprise Agreement 2011-2015. The applicant sought to have the agreement approved for the purposes of section 234 of the Fair Work Act 2009. The Commission was required to consider whether the agreement met the criteria for approval, including whether it provided for a fair and efficient workplace and whether it was free from any illegality.

The key legal issue before the Commission was whether the agreement met the requirements for approval under section 234 of the Fair Work Act 2009. The Commission considered whether the agreement provided for a fair and efficient workplace and whether it was free from any illegality. The Commission also considered whether the agreement provided for the protection of vulnerable workers and whether it was consistent with the Fair Work Act's objectives.

After considering the evidence and submissions from both parties, the Commission determined that the agreement met the requirements for approval under section 234 of the Fair Work Act 2009. The Commission found that the agreement provided for a fair and efficient workplace and was free from any illegality. The Commission also found that the agreement provided for the protection of vulnerable workers and was consistent with the Fair Work Act's objectives. The Commission approved the agreement, subject to certain modifications, and ordered that the agreement be registered with the Fair Work Commission.

The Commission's decision provides guidance to employers and unions on the requirements for approving enterprise agreements under the Fair Work Act 2009. The decision highlights the importance of ensuring that enterprise agreements provide for a fair and efficient workplace, protect vulnerable workers, and are consistent with the Fair Work Act's objectives. The decision also provides guidance on the types of modifications that may be required to ensure that an agreement meets the requirements for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established