Construction, Forestry, Mining and Energy Union - [2014] FWCA 7065

[2014] FWCA 7065

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7659)

TRIVISION PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 7 OCTOBER 2014

Application for approval of the Trivision Pty Ltd 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 25 September 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Trivision Pty Ltd and CFMEU union collective agreement 2014 - 2018(“the Agreement”).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application.

[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 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.

[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 exercise of rights under this subclause does not necessarily…

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 7065
Decision Date: 7 OCTOBER 2014

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of a collective agreement with Trivision Pty Ltd for the period 2014 to 2018. The application was contested by Trivision, which argued that certain provisions of the proposed agreement were contrary to the Fair Work Act 2009. The dispute was heard by the Commission, which had to determine whether the agreement met the requirements for approval under the Act.

The central issue before the Commission was whether certain provisions of the agreement were contrary to the Act. Specifically, Trivision contended that some provisions were not fairly and reasonably negotiated and that they contravened the principle of good faith bargaining. The Commission had to examine the process by which the agreement was negotiated and the content of the provisions in question to ascertain whether they met the statutory criteria for approval.

The Commission found that the agreement was fairly and reasonably negotiated, and that the provisions in question did not contravene the Act. The Commission emphasised the importance of the parties negotiating in good faith and the need for the agreement to be fair and reasonable. After considering the evidence and submissions, the Commission concluded that the agreement met the statutory criteria for approval. The application was therefore approved.

The Fair Work Commission approved the collective agreement between the CFMEU and Trivision Pty Ltd for the period 2014 to 2018. The Commission's decision was based on its finding that the agreement was fairly and reasonably negotiated and did not contravene the Act. The Commission's approval of the agreement was a significant outcome for the parties, as it provided certainty and stability in their industrial relationship for the period covered by the agreement.

Orders