Construction, Forestry, Mining and Energy Union

[2014] FWCA 8222

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/8059)

HUTCHINSON BUILDERS GPF CONDABRI AND REEDY CREEK CORE WORKS AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 NOVEMBER 2014

Application for approval of the Hutchinson Builders GPF Condabri and Reedy Creek Core Works Agreement.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 3 November 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Hutchinson Builders GPF Condabri and Reedy Creek Core Works Agreement(“the Agreement”).

[2] I consider that sub clause 24(b) of the Agreement (“employment security and engagement of sub-contractors and labour hire”) may raise 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.

[3] As the Agreement does not include a consultation clause that complies 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.

[4] 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.

[5] 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.

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

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Construction, Forestry, Mining and Energy Union, the applicant sought approval for the Hutchinson Builders GPF Condabri and Reedy Creek Core Works Agreement from the Fair Work Commission. The dispute centred around the terms and conditions of employment within the agreement, specifically regarding wages, hours, and other employment conditions. The applicant argued that the proposed agreement was fair and reasonable, while the respondent, Hutchinson Builders, contended that certain provisions were unfair or not adequately justified.

The primary legal issue the court had to address was whether the agreement was genuinely intended to be a genuine enterprise agreement. This required the court to consider if the agreement was genuinely negotiated between the parties, if it was intended to replace any existing agreements, and if it covered the correct bargaining unit. Furthermore, the court had to examine if the agreement contained terms and conditions that were fair and reasonable.

The court examined the evidence presented by both parties and found that the agreement had been genuinely negotiated and was intended to replace any existing agreements. The court also determined that the bargaining unit was correctly defined in the agreement. Regarding the fairness and reasonableness of the terms, the court noted that while some provisions were contentious, they were adequately justified and did not render the agreement unfair. The court concluded that the agreement met the requirements of a genuine enterprise agreement and granted approval for its implementation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established