Construction, Forestry, Mining and Energy Union

[2014] FWCA 7256

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/9168)

BRIGHTON QUEENSLAND PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 14 OCTOBER 2014

Application for approval of the Brighton Queensland Pty Ltd and CFMEU union collective agreement 2011 - 2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 29 September 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Brighton Queensland Pty Ltd and CFMEU union collective agreement 2011 - 2015(“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”) 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] For the further avoidance of doubt, I note the following.

Clauses 32.4 and 32.7 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 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.”

[5] 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.

[6] 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.

[7] 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.

[8] 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 an application for approval of the Brighton Queensland Pty Ltd and CFMEU union collective agreement 2011-2015, the Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission (FWC) for approval of a proposed collective agreement. The applicant, a construction company, sought to enter into the agreement with the respondent union, which would govern the employment conditions of its employees. The dispute centred on whether the proposed collective agreement complied with the relevant provisions of the Fair Work Act 2009.

The court was required to determine whether the agreement contained terms that were contrary to the provisions of the Fair Work Act, specifically whether the agreement was consistent with the provisions relating to enterprise agreements, and whether the agreement was made in good faith and for the purposes of facilitating a productive workplace. The court also had to consider whether the agreement contained terms that were inconsistent with the provisions of the Act, such as terms that may have been detrimental to the employees.

The court found that the proposed collective agreement did not contain any terms that were contrary to the provisions of the Fair Work Act. The agreement was consistent with the relevant provisions of the Act and had been made in good faith for the purposes of facilitating a productive workplace. The court also found that the agreement did not contain any terms that were inconsistent with the provisions of the Act, and that the terms of the agreement were not detrimental to the employees. The court approved the proposed collective agreement.

The court approved the proposed collective agreement between the Brighton Queensland Pty Ltd and the CFMEU union for the period 2011-2015. The court found that the agreement was consistent with the relevant provisions of the Fair Work Act, had been made in good faith, and did not contain any terms that were detrimental to the employees. The court's decision provided certainty to both the employer and the employees, and facilitated a productive workplace. The agreement was approved, and the court's decision brought finality to the dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established