Construction, Forestry, Mining and Energy Union

[2015] FWCA 3763

[2015] FWCA 3763

FAIR WORK COMMISSION

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 the Commission that it is the mutual intention of the CFMEU and the employer that the application clause is intended to apply only to the employer as identified and all the employees of the employer engaged in construction work and to whom classifications and rates of pay are provided by the Agreement. That is, the Agreement does not purport to apply to another corporate entity that may come into existence at a future date.

[6] An agreement that purports to have such an effect would not be an agreement for purposes of s.172 of the Act (and could not be the proper subject of an application for approval). This is because the agreement would not be made between the employees employed in the relevant classifications and an employer the identity of which had been disclosed at the relevant time.

[7] It is noted that s.313 of the Act would deal with circumstances in which employees of Skytrek Construction Access Pty Ltd become transferring employees in a transfer of business context.

[8] 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 six (6) weeks, without the consent of the CFMEU.

[9] 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.

[10] In relation to clause 42 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 42 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 seeks to impose.

[11] For the further avoidance of doubt, I note the following.

• Clauses 32.4 and 32.7 must be read in conjunction with Clause 40 of the Agreement.



• relevant extract of Clause 40 is as follows:




“The right provided for in subclause 32.4 does not constitute an entitlement to hold discussions with one or more employees other than by way of the procedures stipulated in Part 3-4 of the Act.

The company will comply with the requirements of the Privacy Act 1988 (Cth) in respect of any requests made under the subclause 32.7 to which that Act applies. The clause will not be exercised inconsistently with Part 3-4 of the FW Act 2009. However, the exercise of rights under this subclause does not necessarily invoke the operation of Part 3-4 in that information may be sought for purposes other than those identified in Part 3-4 and without the need for entry into workplaces.”

[12] The above qualification of the right of entry authority sought by the CFMEU is imbedded in the “Severability” clause at clause 40 of the Agreement.

[13] The consultation clause does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

[14] Subject to the above, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[15] The CFMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the CFMEU.

[16] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

 1   Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

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