DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2015/1441)

SHOP FITZ 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 Shop Fitz 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 Shop Fitz 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 4240
Decision Date: 23 JUNE 2015

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission (FWC) for approval of a collective agreement with Shop Fitz Pty Ltd for the period 2014 to 2018. The application was contested by Shop Fitz, which argued that the proposed agreement was not in the best interests of the employees. The FWC heard the matter and provided its decision, which included a detailed analysis of the legal issues and the evidence presented by both parties.

The legal issues before the FWC centred on whether the collective agreement was fair and reasonable for the employees and whether it was in their best interests. The FWC had to consider the principles of good faith bargaining, the objects of the Fair Work Act 2009, and the provisions of the agreement itself. The FWC also had to balance the interests of the employees with those of the employer, taking into account the economic context and the specific circumstances of the bargaining parties.

The FWC found that the agreement was fair and reasonable for the employees, and that it was in their best interests. The FWC noted that the agreement provided for a number of benefits for the employees, including improved pay and conditions, and that these benefits were significant and meaningful. The FWC also found that the agreement was the product of good faith bargaining, and that it complied with the objects of the Fair Work Act. The FWC concluded that the agreement was not unreasonable, and that it should be approved.

The FWC approved the proposed collective agreement, subject to certain modifications. The modifications were made to ensure that the agreement complied with certain legal requirements and to address some of the concerns raised by the employer. The FWC also made an order that the agreement be registered with the Australian Industrial Relations Commission.

Orders