Construction, Forestry, Mining and Energy Union

[2014] FWCA 6678

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7320)

PHOENIX PROJECT DEVELOPMENT PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014-2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 22 SEPTEMBER 2014

Application for approval of the Phoenix Project Development 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 Phoenix Project Development 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).

Printed by authority of the Commonwealth Government Printer

In this case, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for a collective agreement with Phoenix Project Development Pty Ltd for the period 2014-2018. The application was heard by the Fair Work Commission (FWC). The CFMEU, as a registered union, had entered into negotiations with Phoenix to establish terms and conditions of employment for its members working under the agreement. The dispute centred on whether the proposed agreement met the legal standards for approval under the Fair Work Act 2009.

The key legal issues before the FWC were whether the agreement was "registered" as required by section 233 of the Act, and whether the agreement contained any provisions that contravened the "better off overall test" (BOOT) under section 235. The CFMEU argued that the agreement provided adequate protections and benefits to its members, while Phoenix contended that certain provisions were overly restrictive and detrimental to its business operations.

The FWC carefully examined the agreement, assessing whether it provided for fair and reasonable terms for both parties and whether it met the BOOT. The Commission found that while some provisions could be considered restrictive, they were not so onerous as to render the agreement unfair. The FWC concluded that the agreement did not contravene the BOOT and approved the collective agreement, recognising the need to balance the rights of employers and employees under the Fair Work Act.

As a result of the FWC's decision, the collective agreement between Phoenix Project Development Pty Ltd and the CFMEU was approved, allowing it to be registered and enforceable. The court ordered that the agreement be registered and recognised as a lawful collective agreement between the parties.

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