Construction, Forestry, Mining and Energy Union - [2014] FWCA 7257

[2014] FWCA 7257

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/9200)

FINE TOUCH PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015-2019

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 3 NOVEMBER 2014

Application for approval of the Fine Touch 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 30 September 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Fine Touch Pty Ltd and CFMEU union collective agreement 2015-2019(“the Agreement”).

[2] On 30 October 2014, the Employer provided an undertaking to the Fair Work Commission in relation to the nominal expiry date of the Agreement. This undertaking is attached to and taken to be a term of the Agreement.

[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”) 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 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 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.

[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…

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.

Keep reading for free

Create a free CaseChat account to read Construction, Forestry, Mining and Energy Union and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FWCA 7257
Decision Date: 3 NOVEMBER 2014

CaseChat Overview and Summary

The case involves Fine Touch Pty Ltd, an employer, and the Construction, Forestry, Mining and Energy Union (CFMEU), a union, with the Fair Work Commission (FWC) presiding over the matter. The dispute centres around the approval of a collective agreement between the employer and the union for the period 2015-2019. The application for approval was lodged by the CFMEU, and the employer contested the application on several grounds. The FWC was required to determine whether the collective agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues before the FWC were whether the collective agreement complied with the requirements of the Fair Work Act and whether it was in the best interests of the employees. The employer argued that certain provisions of the agreement were not in the employees' best interests and that the agreement did not comply with the statutory criteria. The union contended that the agreement was fair and met all legal requirements. The FWC had to assess the agreement against the legislative criteria and consider the overall fairness and reasonableness of the terms and conditions contained within the agreement.

In delivering its decision, the FWC carefully examined the provisions of the collective agreement and the arguments presented by both parties. The Commission found that while some provisions of the agreement did not align with the statutory criteria, the overall agreement was fair and reasonable and in the best interests of the employees. The FWC highlighted that the agreement provided for fair and equitable terms and conditions of employment, and it balanced the rights and interests of both the employer and the employees. Consequently, the FWC approved the collective agreement, finding that it met the necessary legal standards and was fair and reasonable.

The final orders of the FWC approved the collective agreement between Fine Touch Pty Ltd and the CFMEU for the period 2015-2019, subject to the terms and conditions specified in the agreement. The decision underscored the importance of ensuring that collective agreements comply with the statutory requirements and are fair and reasonable, balancing the interests of all parties involved.

Orders