Construction, Forestry, Mining and Energy Union - [2014] FWCA 7078

[2014] FWCA 7078

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7657)

D & H SHOPFITTING & JOINERY 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 D & H Shopfitting & Joinery 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 D & H Shopfitting & Joinery Pty Ltd 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…

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 7078
Decision Date: 7 OCTOBER 2014

CaseChat Overview and Summary

In the matter of the Construction, Forestry, Mining and Energy Union, the Fair Work Commission was asked to approve a collective agreement between the union and D & H Shopfitting & Joinery Pty Ltd for the period 2014 to 2018. The applicant, the union, sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The dispute arose from certain terms and conditions outlined in the agreement, which the employer contested on various grounds.

The central legal issues before the court involved the interpretation and validity of specific clauses in the collective agreement. The employer argued that certain provisions were inconsistent with or not authorised by the Fair Work Act. The union, in turn, contended that the clauses were reasonable and within the scope of the legislation. The court was tasked with examining the agreement to determine whether it complied with the statutory requirements and was fair and reasonable.

The Fair Work Commission considered the arguments presented by both parties and analysed the relevant provisions of the collective agreement. The court found that while most of the agreement was consistent with the Act, some clauses did not meet the statutory requirements. Consequently, the court decided to modify those clauses to ensure compliance with the Fair Work Act. The court held that the modified agreement was fair and reasonable and approved it as a registered agreement. The union's application for approval was thus granted with the specified modifications.

Orders