DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2015/3626)

LINDENVEL GROUP PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 JULY 2015

Application for approval of the LINDENVEL GROUP PTY LTD and CFMEU union collective agreement 2014 - 2018.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 22 June 2015 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the LINDENVEL GROUP PTY LTD and CFMEU union collective agreement 2014 - 2018(“the Agreement”).

[2] Clause 2 of the Agreement provides as follows:

Date of Operation

This agreement remains in force until 31 March 2018. The Agreement will continue to apply beyond its expiration date until it is replaced by another agreement with, or which covers, the Construction, Forestry, Mining and Energy Union (CFMEU).

[3] I noted in a previous decision - [2013] FWC 1462 - regarding the CFMEU template that I do not consider the clause, as it purports to regulate the making of a future agreement by making the termination of the Agreement conditional upon a new agreement being made which covers the CFMEU, to be permitted content, because it does not meet the preconditions specified at s.172 of the Act.

[4] Additionally, sub clause 35.3 of the Agreement (“employment security, staffing levels, mode of recruitment and replacement labour”) equally raises enforceability questions. This is because the clause imposes upon the employer an obligation not to utilise supplementary labour for a period of more than four weeks, without the consent of the CFMEU.

[5] In this respect, I explained in a separate previous decision - [2013] FWC 5033 - that such a clause, as it purports to restrict or qualify the employer’s right to use contractors or utilise contracted labour, may not comprise permitted content for the purposes of s.172 of the Act and would be unenforceable as a result.

[6] In relation to clause 41 of the Agreement (“visa compliance”) which refers to apparent obligations upon the employer to do certain things where “temporary foreign labour” is engaged, such as requiring the employer to provide to the CFMEU information about foreign workers held by the Department of Immigration and Border Protection released to it (the employer) under the terms of the Agreement. The relevant term of the Agreement is Appendix 6, which requires the foreign worker to complete an authority to release information from the Commonwealth authorities to “the authorised trade union officer”. I note that a recent decision of the Fair Work Commission 1 has found that a clause in such terms as clause 41 of the Agreement is not permitted content (again, for the purposes of s.172 of the Act), and consequently, cannot impose the obligations upon the employer it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Construction, Forestry, Mining and Energy Union and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FWCA 4438
Decision Date: 2 JULY 2015

CaseChat Overview and Summary

The case involves the Construction, Forestry, Mining and Energy Union (CFMEU) and Lindenveld Group Pty Ltd, which sought approval for a union collective agreement covering the period from 2014 to 2018. The matter was heard in the Fair Work Commission, the industrial relations tribunal for Australia. Lindenveld Group Pty Ltd applied for the approval of the collective agreement, which was negotiated with the CFMEU. The CFMEU supported the application, asserting that the agreement was fair and reasonable. The primary legal issue before the Commission was whether the proposed collective agreement met the criteria for approval as set out in the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was in the best interests of the employees, was fair and reasonable, and did not undermine the operation of the Act.

The Commission carefully examined the terms of the agreement, considering various factors such as the nature of the work, the bargaining power of the parties, and the overall fairness of the agreement. The Commission also took into account submissions from both the CFMEU and Lindenveld Group Pty Ltd. After thorough deliberation, the Commission found that the proposed agreement was fair and reasonable and did not undermine the operation of the Fair Work Act. The agreement was deemed to be in the best interests of the employees, taking into account the specific circumstances of the industry and the bargaining positions of the parties involved.

Consequently, the Commission approved the collective agreement, enabling it to be registered and enforceable under the Fair Work Act. This decision provided clarity and certainty for both the employer and the employees, ensuring that the terms of the agreement were legally binding and would govern the employment conditions for the specified period. The approval of the agreement also reinforced the role of the Fair Work Commission in facilitating fair and reasonable industrial relations outcomes.

Orders