Construction, Forestry, Mining and Energy Union - [2014] FWCA 7153

[2014] FWCA 7153

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7665)

DANEBRITT GROUP PTY LTD T/A WOODLAND SHOPFITTING AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

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

Application for approval of the Danebritt Group Pty Ltd t/a Woodland Shopfitting and CFMEU union collective agreement 2014 - 2018.

[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 single-enterprise agreement known as the Danebritt Group Pty Ltd t/a Woodland Shopfitting and CFMEU union collective agreement 2014 - 2018(“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.”

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 7153
Decision Date: 9 OCTOBER 2014

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for a collective agreement between the union and the Danebritt Group Pty Ltd, trading as Woodland Shopfitting, for the period 2014 to 2018. The case arose from a dispute over the terms of the proposed agreement, which the union and the employer had negotiated but which required approval from the Commission to be legally binding. The employer argued that certain provisions of the agreement were not in line with contemporary employment standards and practices, and thus should not be approved.

The central legal issue before the Commission was whether the terms of the proposed agreement complied with the requirements set out in the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions of employment, and if it adhered to the principles of enterprise bargaining as outlined in the Act. The Commission also had to consider whether the agreement met the standard of being in the best interests of the employees.

The Fair Work Commission found that the majority of the provisions in the proposed agreement were fair and reasonable, and complied with the statutory requirements. The Commission noted that the agreement contained provisions that went beyond the minimum entitlements required by law, including provisions for higher rates of pay and enhanced leave entitlements. However, the Commission did find certain clauses that were not in line with contemporary employment standards, such as provisions that restricted the employer's ability to manage its business. The Commission subsequently modified these clauses to ensure they were fair and reasonable. Having made these modifications, the Commission approved the agreement in its entirety, finding that it was in the best interests of the employees.

The final order of the Commission was that the collective agreement between the union and the employer, as modified, be approved and registered. The agreement would then be legally binding on both parties for the specified period.

Orders