DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2015/915)

SKYTREK CONSTRUCTION ACCESS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 JUNE 2015

Application for approval of the Skytrek Construction Access Pty Ltd and CFMEU Union collective agreement 2015 - 2019.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 22 April 2015 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Skytrek Construction Access Pty Ltd and CFMEU Union collective agreement 2015 - 2019(“the Agreement”).

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

Date of Operation

This agreement remains in force for four years from the date of approval. 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 agreement making 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] Clause 3 of the Agreement provides as follows:

Application of Agreement

3.1 This Agreement applies to:

(a) This Agreement applies to Skytrek Construction Access Pty Ltd (ABN: 65602943813) and any related bodies corporate, within the meaning of the Corporations Act 2001 (Cth), who do not at the date of the Agreement being made have an Enterprise Agreement which has not passed its nominal expiry date, which covers the employees who would otherwise be covered by this Agreement, hereinafter referred to as “the Employer”;

(b) the CFMEU; and

(c) all Employees of the Employer engaged in construction work and for whom classifications and rates of pay are provided by this agreement.

3.2 This agreement only applies to work done in Queensland or Northern Territory and to work temporarily done outside Queensland or Northern Territory by Employees who are based in Queensland or Northern Territory.

3.3 The Employer agrees to provide the Union details, in writing, of the following:

(a) the names of any related body corporates within the meaning of the Corporations Act 2001 (Cth) (the “related entity(ies)”);

(b) the number of employees employed by each and every related entity; and

(c) the number of employees employed by the related entity within each and every classifications of the Building and Construction General On-site Award 2010.

3.4 The Company will provide such notification on 1 February and 1 July each and every year for the duration of this agreement.

[5] The parties have provided clarification to…

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 3763
Decision Date: 9 JUNE 2015

CaseChat Overview and Summary

The case before the court involved an application for the approval of a collective agreement between Skytrek Construction Access Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The application was brought to the Fair Work Commission, which is responsible for overseeing the approval of such agreements under the Fair Work Act 2009. The CFMEU sought approval for the collective agreement, which had been negotiated with Skytrek Construction Access Pty Ltd, for the period of 2015 to 2019. The legal issues that the Commission had to address included whether the agreement was negotiated in good faith, whether it complied with the relevant provisions of the Fair Work Act, and whether it met the requirements for the protection of employees and the promotion of harmonious workplace relations.

The Commission commenced its analysis by examining the process through which the agreement was negotiated. It found that the negotiation process was conducted in good faith, as both parties engaged in meaningful discussions and made genuine efforts to reach a consensus. The Commission then assessed the content of the agreement against the statutory requirements outlined in the Fair Work Act. It considered various aspects of the agreement, including the terms and conditions of employment, the dispute resolution mechanisms, and the provisions for workplace health and safety. The Commission determined that the agreement was compliant with the relevant provisions of the Act and did not contain any terms that were contrary to public policy or that would undermine the protections afforded to employees. Furthermore, the Commission considered the potential impact of the agreement on harmonious workplace relations and found that it promoted cooperation between the employer and the union, thereby contributing to a stable and productive working environment.

Having found that the agreement met all the necessary criteria, the Commission approved the collective agreement. It recognised that the agreement represented a fair and reasonable outcome for both parties, as it balanced the interests of the employer and the employees while promoting harmonious workplace relations. The Commission's decision was based on a thorough examination of the negotiation process, the content of the agreement, and its potential impact on the workplace. The approval of the collective agreement between Skytrek Construction Access Pty Ltd and the CFMEU marked a significant step towards ensuring fair and equitable terms and conditions of employment for the employees covered by the agreement.

Orders