Construction, Forestry, Mining and Energy Union - [2014] FWCA 7253

[2014] FWCA 7253

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7680)

BRIGHTON VICTORIA 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 Victoria 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 Greenfields agreement known as the Brighton Victoria 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] In relation to clause 41 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 41 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 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] A statutory declaration was provided by Mr J.…

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 7253
Decision Date: 14 OCTOBER 2014

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of a collective agreement between Brighton Victoria Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the period 2011-2015. The application was made by the employer, seeking the Commission's approval of the agreement which outlined terms and conditions of employment for the workers. The legal issues centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the statutory requirements for approval.

The Commission examined the agreement to determine if it was a good faith bargain, if it contained only permissible terms and conditions, and if it provided for proper processes for resolving disputes. The Court found that the agreement was indeed a genuine product of arm's length bargaining between the parties and that it contained terms and conditions that were not less favourable than the applicable award or safety net. The agreement also provided adequate mechanisms for resolving disputes and was thus compliant with the statutory requirements.

In conclusion, the Commission approved the collective agreement, recognising that it was a fair and reasonable outcome of negotiations between the employer and the union. The Commission found that the agreement was not only a genuine product of arm's length bargaining but also contained terms and conditions that were not less favourable than the applicable award or safety net. The Court's decision ensured that the agreement met all statutory requirements and provided for proper dispute resolution mechanisms. The final orders included the approval of the collective agreement between Brighton Victoria Pty Ltd and the CFMEU for the period 2011-2015.

Orders