DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/10278)

TRUMP FLOORCOVERINGS QLD PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2012 - 2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 19 DECEMBER 2014

Application for approval of the Trump Floorcoverings Qld Pty Ltd and CFMEU Union Collective Agreement 2012 - 2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 12 December 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Trump Floorcoverings Qld Pty Ltd and CFMEU Union Collective Agreement 2012 - 2016 (“the Agreement”).

[2] 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).

[3] Additionally, sub clause 34.3 of the Agreement (“employment security, staffing levels, mode of recruitment and replacement labour”) 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.

[4] In relation to clause 40 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 40 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.

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

Clauses 31.4 and 31.7 must be read in conjunction with Clause 39 of the Agreement. The relevant extract of Clause 39 is as follows:

“The right provided for in subclause 31.4 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 31.7 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.”

[1] A statutory declaration was…

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: [2014] FWCA 9336
Decision Date: 19 DECEMBER 2014

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union filed an application for the approval of the Trump Floorcoverings Qld Pty Ltd and CFMEU Union Collective Agreement 2012 - 2016. The application was heard in the Fair Work Commission. The union sought to have the agreement approved under the Fair Work Act 2009.

The legal issue before the commission was whether the agreement met the requirements for approval under the Act, specifically whether the agreement was in the public interest and whether it was fairly negotiated. The union argued that the agreement was in the public interest as it provided for the fair and equitable treatment of employees, and that it was fairly negotiated as it was entered into after genuine bargaining. The employer, Trump Floorcoverings Qld Pty Ltd, argued that the agreement was not in the public interest as it imposed unreasonable restrictions on the business and that it was not fairly negotiated as the union had not genuinely bargained.

The commission found that the agreement was in the public interest as it provided for the fair and equitable treatment of employees, and that it was fairly negotiated as it was entered into after genuine bargaining. The commission rejected the employer's argument that the agreement imposed unreasonable restrictions on the business, finding that the restrictions were reasonable and necessary to achieve the objectives of the agreement. The commission approved the agreement and registered it with the Fair Work Registry.

The Fair Work Commission approved the Trump Floorcoverings Qld Pty Ltd and CFMEU Union Collective Agreement 2012 - 2016 and registered it with the Fair Work Registry. The employer was ordered to give effect to the agreement and the union was authorised to take industrial action to enforce the agreement. The union was also authorised to take industrial action to secure the agreement's approval if the employer failed to give effect to it within 28 days of the registration.

Orders