DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2015/1438)

SHOPFITTING HEADQUARTERS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 23 JUNE 2015

Application for approval of the Shopfitting Headquarters 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 15 June 2015 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Shopfitting Headquarters 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 & 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 (4) 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…

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.

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Details

Case: [2015] FWCA 4241
Decision Date: 23 JUNE 2015

CaseChat Overview and Summary

In this case, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of a collective agreement between Shopfitting Headquarters Pty Ltd and the union for the period 2014 to 2018. The Fair Work Commission was the tribunal tasked with reviewing and approving the agreement. The legal issues that the Commission needed to decide were centred on whether the agreement was in compliance with the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the Commission had to determine if the agreement contained all the required terms and conditions and if it was fair and reasonable in the context of the employment relationship.

The Commission examined the agreement clause by clause, ensuring that it included the necessary minimum terms as stipulated in the Fair Work Act. It considered the balance of rights and obligations between the employer and the employees, and whether the agreement provided adequate protections for the employees. The Commission also took into account the bargaining power of both parties and the context in which the agreement was made. It found that the agreement provided for a fair and reasonable set of terms and conditions that met the statutory requirements. The Commission was satisfied that the agreement was appropriately negotiated and did not contain any terms that were unfair or unreasonable.

Accordingly, the Commission approved the collective agreement between Shopfitting Headquarters Pty Ltd and the CFMEU for the period 2014 to 2018. The approval was based on the finding that the agreement was fair and reasonable and met all the statutory requirements. The Commission's decision was in line with its role in ensuring that collective agreements provide a fair and reasonable balance of rights and obligations between employers and employees. The approval of the agreement was an important step in providing certainty and stability to the employment relationship between the parties.

Orders