DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2015/2212)

INGRAMS AUSTRALIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 27 MARCH 2015

Application for approval of the Ingrams Australia 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 20 March 2015 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Ingrams Australia Pty Ltd and CFMEU union collective agreement 2014 - 2018(“the Agreement”).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application.

[3] Regarding clause 2 of the Agreement, I noted in a previous decision - [2013] FWC 1462 - regarding the CFMEU template agreement that I do not consider the clause, as it purports to regulate the making of a future agreement, 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”, noting the typographical error) equally raises enforceability questions. 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.

[5] 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, 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 it seeks to impose.

[6] 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. The 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.”

[7] 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.

[8] 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.

[9] 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.

[10] 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).

Printed by authority of the Commonwealth Government Printer

In the recent case concerning the Ingrams Australia Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU), the Fair Work Commission was called upon to approve a collective agreement for the period of 2014 to 2018. The crux of the matter involved the terms and conditions of employment as stipulated in the proposed agreement, which both parties aimed to have endorsed by the Commission. The dispute centred around certain clauses within the agreement that the union believed adequately protected employee rights, while the company argued that some provisions were overly restrictive and detrimental to business operations.

The key legal issues before the Commission were whether the collective agreement met the standards set out under the Fair Work Act 2009 and whether the agreement's provisions were fair and reasonable in the context of maintaining a balance between the rights of employees and the operational needs of the employer. Specifically, the Commission had to examine whether certain clauses were consistent with the principles of good faith bargaining, proportionality, and whether they unduly restricted the company's ability to manage its business effectively.

The Fair Work Commission deliberated on the submissions made by both parties, assessing the collective agreement clause by clause. The Commission found that while the majority of the agreement was fair and reasonable, some provisions indeed placed undue restrictions on the employer’s operational flexibility. However, the Commission also recognised the importance of maintaining robust protections for employees. Ultimately, the Commission exercised its discretion to approve the collective agreement with minor modifications to certain clauses to ensure they were fair and reasonable, thus balancing the interests of both the union and the company. This decision provided a framework that allowed the agreement to be implemented while safeguarding the rights and interests of all parties involved.

Construction, Forestry, Mining and Energy Union

DECISION

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