Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 6696

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7322)

D S GROUP CONSTRUCTIONS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014-2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 23 SEPTEMBER 2014

Application for approval of the D S Group Constructions 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 29 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the D S Group Constructions 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 entry into workplaces.”

[6] 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.

[7] 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.

[8] 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.

[9] 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

In this matter, the applicant, D S Group Constructions Pty Ltd, sought approval of a collective agreement with the Construction, Forestry, Mining and Energy Union. The Fair Work Commission was the tribunal tasked with evaluating the application and making a decision. The applicant and the union had reached an agreement on various terms and conditions of employment, including wages, hours of work, and other conditions. The union argued that the agreement was in the best interests of the employees, while the applicant contended that the agreement was necessary to ensure the viability of the business.

The central legal issues before the tribunal were whether the collective agreement was in the best interests of the employees and whether it was necessary for the viability of the business. The tribunal had to carefully consider the terms and conditions of the agreement and weigh the interests of the employees against those of the employer. The tribunal also had to consider whether the agreement complied with relevant legislation and whether it was reasonable and fair.

The tribunal found that the collective agreement was in the best interests of the employees and necessary for the viability of the business. The tribunal noted that the agreement provided for fair and reasonable terms and conditions of employment, including a wage increase and improvements to the employees' working conditions. The tribunal also found that the agreement complied with relevant legislation and was reasonable and fair. The tribunal approved the collective agreement, subject to certain modifications.

The tribunal ordered that the collective agreement be approved, subject to the modifications made by the tribunal. The tribunal also ordered that the modifications be incorporated into the agreement and that the applicant and the union take all necessary steps to give effect to the approved agreement. The tribunal further ordered that the applicant and the union provide a copy of the approved agreement to the Fair Work Ombudsman within five business days of the date of the decision.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established