Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 7117

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7658)

FLOOR LEVEL AUSTRALIA PTY LTD T/A CARPET CONTRACTORS AND CFMEU UNION COLLECTIVE AGREEMENT 2012-2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 8 OCTOBER 2014

Application for approval of the Floor Level Australia Pty Ltd T/A Carpet Contractors and CFMEU union collective agreement 2012-2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 25 September 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Floor Level Australia Pty Ltd T/A Carpet Contractors and CFMEU union collective agreement 2012-2016(“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 34.3 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 40 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 40 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] 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

1 Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought approval for a collective agreement with Floor Level Australia Pty Ltd T/A Carpet Contractors for the period 2012-2016. The union argued that the agreement fairly reflected the terms and conditions of employment for the workers, while the employer contested certain provisions, claiming they were unreasonable and not in the best interests of the business. The dispute centred on several clauses, including those relating to wage increases, penalty rates, and shift patterns.

The legal issues before the Commission were whether the contested provisions of the collective agreement were reasonable and whether they fell within the scope of what is permissible under the Fair Work Act. The Commission needed to assess if the provisions met the criteria for 'good faith' bargaining and if they were necessary to address the particular circumstances of the industry and the workforce. It also had to consider the implications of the agreement on the employer's business operations and the broader economic environment.

In its decision, the Commission found that while some provisions were indeed unreasonable, others were fair and necessary for the protection of the workers' rights. The Commission emphasised the importance of balancing the interests of both parties and ensuring that the agreement did not unduly restrict the employer's ability to manage its business. It approved the agreement with some modifications to the contested clauses, ensuring they aligned more closely with the principles of fairness and reasonableness. The modified agreement was deemed to meet the legal standards required for approval under the Fair Work Act.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established