DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2015/1388)

BCD GROUP CONSTRUCTIONS PTY LTD T/A HOARDU AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 16 JUNE 2015

Application for approval of the BCD Group Constructions Pty Ltd t/a Hoardu 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 10 June 2015 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the BCD Group Constructions Pty Ltd t/a Hoardu 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),…

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 4042
Decision Date: 16 JUNE 2015

CaseChat Overview and Summary

The parties in this case were the Construction, Forestry, Mining and Energy Union (CFMEU) and BCD Group Constructions Pty Ltd trading as Hoardu. The dispute was over the approval of a union collective agreement for the period 2014-2018. The Fair Work Commission, the body responsible for regulating workplace agreements, heard the case. The CFMEU sought approval for a collective agreement which it had negotiated with Hoardu. The application was contested by Hoardu, which objected to several clauses within the agreement. The legal issues centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was in the best interests of the employees covered by it and if it adhered to the provisions of the Act, including those relating to good faith bargaining and the avoidance of unprotected industrial action.

The Fair Work Commission examined the agreement clause by clause, focusing on its fairness and compliance with the Act. It found that the agreement, while not perfect, did not significantly prejudice the employees' interests and complied with the overarching statutory framework. The Commission noted that while some provisions were contentious, they did not undermine the overall fairness of the agreement. It was particularly important that the agreement facilitated good faith bargaining and aimed to prevent unprotected industrial action. The Commission concluded that the benefits of the agreement, particularly in terms of providing a stable and fair working environment, outweighed the objections raised by Hoardu.

The Fair Work Commission approved the collective agreement, subject to minor modifications to address some of Hoardu's concerns. The decision emphasised the importance of balancing the rights of employers and employees, ensuring that the agreement promoted fair and constructive workplace relations. The Commission's approval was conditional on the changes, ensuring that the final agreement better reflected the needs and protections of the employees involved. The outcome underscored the Commission's role in mediating disputes and ensuring that collective agreements serve the broader interests of industrial harmony and fairness.

Orders