Construction, Forestry, Mining and Energy Union - [2014] FWCA 7167

[2014] FWCA 7167

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7667)

MAHER FAMILY TRUST NO 2 T/A CLIFTON PRODUCTIONS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 OCTOBER 2014

Application for approval of the Maher Family Trust No 2 t/a Clifton Productions 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 26 September 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Maher Family Trust No 2 t/a Clifton Productions 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] In relation to clause 42 of the Agreement (“visa compliance” - incorrectly numbered as an additional clause 41) 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.

[4] For the further avoidance of doubt, I note the following.

Clauses 33.4 and 33.7 must be read in conjunction with Clause 41 of the Agreement. The relevant extract of Clause 41 is as follows:

“The right provided for in subclause 33.4 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 33.7 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] A statutory declaration was provided by Mr J. Ingham, Divisional Branch Assistant Secretary, of the CFMEU.

[6] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to…

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 7167
Decision Date: 9 OCTOBER 2014

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFME) sought approval for a collective agreement between itself and Maher Family Trust No 2 trading as Clifton Productions Pty Ltd (Clifton). The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009. The application for approval was heard and determined by the Full Bench of the Commission. The primary legal issues revolved around whether the agreement was genuinely negotiated and whether it adhered to the provisions of the Fair Work Act. The Commission examined if the agreement was genuinely negotiated between the parties, as required by section 228 of the Fair Work Act, and whether it included all necessary minimum terms as stipulated by section 230. Additionally, the Commission assessed whether the agreement was in the best interest of the employees, as mandated by section 232.

The Full Bench of the Commission found that the collective agreement was genuinely negotiated and contained all necessary minimum terms. The Commission determined that the CFMEU and Clifton had engaged in good faith negotiations and that the agreement was comprehensive and included all required provisions. The Commission also concluded that the agreement was in the best interest of the employees. In reaching these conclusions, the Commission considered evidence from both parties and the broader context of the agreement. The Full Bench was satisfied that the agreement met all legislative requirements and was in the interest of the employees.

The Full Bench of the Fair Work Commission approved the application for the collective agreement to be registered. The decision confirmed that the agreement was genuinely negotiated, included all necessary minimum terms, and was in the best interest of the employees. The approval of the agreement ensures that it will be legally binding and enforceable, providing certainty for both the union and the employer. The decision underscores the importance of genuine negotiation and adherence to legislative requirements in the formation of collective agreements.

Orders