Construction, Forestry, Mining and Energy Union - [2014] FWCA 6997

[2014] FWCA 6997

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7632)

TRUSTEE FOR HIGHRISE BUILDING SERVICES TRUST T/A HIGHRISE BUILDING SERVICES PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015-2019

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 13 OCTOBER 2014

Application for approval of the Trustee for Highrise Building Services Trust t/a Highrise Building 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 23 September 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Trustee for Highrise Building Services Trust t/a Highrise Building Services Pty Ltd and CFMEU Union collective agreement 2015-2019(“the Agreement”).

[2] On 10 October 2014, the Employer provided an undertaking to the Fair Work Commission. 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…

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 6997
Decision Date: 13 OCTOBER 2014

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought approval for a collective agreement with Highrise Building Services Pty Ltd. The dispute centred around the terms and conditions of employment within the building services sector, specifically for employees of Highrise Building Services Pty Ltd. The legal issues at hand involved determining whether the collective agreement complied with the Fair Work Act 2009 and ensuring it met the requirements for good faith bargaining and fairness.

The court examined the procedural fairness of the agreement, including whether the union and the employer had engaged in good faith bargaining. Additionally, the court considered whether the terms of the agreement were fair and reasonable, taking into account the interests of both the employees and the employer. The court also assessed whether the agreement provided for proper representation of the employees and whether it adhered to the principles of industrial justice.

The Fair Work Commission concluded that the collective agreement was approved as it met the statutory requirements under the Fair Work Act 2009. The Commission found that the bargaining process was conducted in good faith and the terms of the agreement were fair and reasonable. The Commission was satisfied that the agreement provided for proper representation of the employees and that it adhered to the principles of industrial justice. Therefore, the application for approval of the collective agreement was granted.

The Fair Work Commission ordered that the CFMEU Union collective agreement 2015-2019 with Highrise Building Services Pty Ltd be approved and registered. This decision provided clarity and legal certainty for the parties involved, ensuring that the terms of the agreement would govern the employment relationship for the specified period.

Orders