Construction, Forestry, Mining and Energy Union

[2014] FWCA 6854

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7540)

TCWP PTY LTD T/A PROFICIENT PROJECTS AND CFMEU UNION COLLECTIVE AGREEMENT 2014-2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 30 SEPTEMBER 2014

Application for approval of the TCWP Pty Ltd t/a Proficient Projects 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 16 September 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the TCWP Pty Ltd t/a Proficient Projects 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.”

[6] A statutory declaration was provided by Mr K. Pearson, Divisional Branch Assistant Secretary, of the CFMEU.

[7] 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 work that is to be performed under it and that it is in the public interest to approve the Agreement.

[8] 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.

[9] 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.

[10] 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).

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) and TCWP Pty Ltd t/a Proficient Projects brought their application before the Fair Work Commission (FWC) for approval of their collective agreement. The agreement was made for the period of 2014 to 2018 and covered various aspects of employment conditions, including wages, hours of work, and dispute resolution mechanisms. The CFMEU, as the registered union, sought to ensure that the agreement provided fair and equitable terms for its members, while TCWP Pty Ltd aimed to establish a clear framework for its business operations. The FWC was tasked with assessing whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the FWC included whether the agreement complied with the relevant provisions of the Fair Work Act, specifically sections 235 and 236. These sections require that a registered union and an employer negotiate in good faith to reach an agreement that provides for the terms and conditions of employment. Additionally, the FWC needed to consider whether the agreement provided for fair and reasonable terms and conditions and if it complied with the Better Off Overall Test (BOOT). This test requires that the agreement must make employees better off overall than they would be under the applicable awards or agreements.

In delivering its decision, the FWC noted that both parties had engaged in good faith negotiations and had made a genuine effort to reach an agreement. The FWC found that the agreement provided for fair and reasonable terms and conditions for the employees and met the requirements of the BOOT. The FWC also considered the specific provisions of the agreement, such as wage increases, leave entitlements, and dispute resolution mechanisms, and found them to be reasonable and in line with industry standards. Consequently, the FWC approved the collective agreement, recognising its compliance with the Fair Work Act and its potential to benefit the employees.

The FWC's final order was to approve the TCWP Pty Ltd t/a Proficient Projects and CFMEU Union Collective Agreement 2014-2018, effective from the date of the decision. The approval signified that the agreement met the necessary legal criteria and was considered fair and reasonable for the employees covered by the agreement. This decision provided clarity and certainty for both the employer and the union, allowing them to proceed with their business operations under the approved collective agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established