Construction, Forestry, Mining and Energy Union

[2014] FWCA 8004

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2014/7948)

TOP KNOT CARPENTRY SERVICES PTY LTD AND CFMEU UNION

COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 11 NOVEMBER 2014

Application for approval of the Top Knot Carpentry Services 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 October 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Top Knot Carpentry Services Pty Ltd and CFMEU Union collective agreement 2015 - 2019 (“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 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.

[4] 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, I note that a recent decision of the Fair Work Commission[1]has found that a clause

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

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.

[5] For the further avoidance of doubt, I note the following.
[2014] FWCA 8004
 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.”

[6] 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.

[7] 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.

[8] 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.

[9] 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 case of Construction, Forestry, Mining and Energy Union v Top Knot Carpentry Services Pty Ltd [2014] FWCA 8004, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of a single-enterprise agreement known as the Top Knot Carpentry Services Pty Ltd and CFMEU Union collective agreement 2015-2019 under section 185 of the Fair Work Act 2009 (the Act). The agreement was to apply to the building, metal and civil construction industries. The CFMEU, acting as the bargaining representative, sought approval of the agreement on behalf of its members.

The primary legal issues for the court to decide were whether certain clauses of the agreement were permitted content under the Act, specifically under sections 172 and 205. The court considered clauses 2, 35.3, and 42 of the agreement, which related to future agreements, the use of contractors, and visa compliance, respectively. Additionally, the court examined clause 40 of the agreement, which dealt with privacy and consultation rights, to determine if it complied with the model consultation term prescribed by the regulations under section 205 of the Act.

The court found that clause 2, which sought to regulate the making of future agreements, did not meet the preconditions specified at section 172 of the Act and was therefore not permitted content. Clause 35.3, which purported to restrict or qualify the employer’s right to use contractors or utilise contracted labour, also raised enforceability questions and was not permitted content. The court noted that a similar clause had been found not to be permitted content in a previous decision. Regarding clause 42, which dealt with visa compliance, the court found that it was not permitted content, as it sought to impose obligations on the employer that were not authorised by the Act.

The court also examined clauses 32.4 and 32.7, which were to be read in conjunction with clause 40. Clause 40 dealt with the company's obligations in relation to privacy and consultation rights. The court found that clause 40 did not conform with section 205 of the Act and was therefore not valid. However, the court was satisfied that all other requirements of the Act relevant to the application for approval had been met.

Ultimately, the court approved the agreement, finding that it would operate in accordance with section 54 of the Act. The CFMEU, as a bargaining representative for the agreement, had given notice under section 183 of the Act that it wanted to be covered by the agreement, and the agreement was found to cover the CFMEU in accordance with section 201(2) of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established