Construction, Forestry, Mining and Energy Union - [2014] FWCA 6664

[2014] FWCA 6664

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7225)

CADEFORD PTY LTD T/A INTEGRA FLOORS AND CFMEU UNION COLLECTIVE AGREEMENT 2012-2016

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

Application for approval of the Cadeford Pty Ltd t/a Integra Floors and CFMEU union collective agreement 2012-2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 25 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Cadeford Pty Ltd t/a Integra Floors and CFMEU union collective agreement 2012-2016(“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 34.3 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 40 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 40 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 31.4 and 31.7 must be read in conjunction with Clause 39 of the Agreement. The relevant extract of Clause 39 is as follows (noting the references to 32.4 and 32.7 are intended to be references to 31.4 and 31.7):

“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…

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 6664
Decision Date: 22 SEPTEMBER 2014

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of a collective agreement with Cadeford Pty Ltd t/a Integra Floors, covering the period 2012 to 2016. The matter was heard in the Fair Work Commission, which is responsible for approving such agreements. The primary dispute centred around the fairness and validity of the terms and conditions outlined in the agreement. Key issues included the classification of employees, wage rates, penalty rates, and various other employment conditions.

The Commission examined whether the agreement complied with the relevant provisions of the Fair Work Act 2009. This included ensuring the agreement was not contrary to public policy or industrial law, and that it was made in good faith and without coercion. The Commission also considered whether the agreement provided fair and reasonable terms and conditions for the employees. A significant aspect of the review was determining if the agreement met the threshold for being considered a "modern award" under the Fair Work Act.

The Fair Work Commission concluded that the agreement was fair and reasonable, and it approved the collective agreement. The Commission found that the terms and conditions were not contrary to public policy and were made in good faith. Additionally, it determined that the agreement provided fair and reasonable terms and conditions for the employees involved. The Commission emphasised the importance of the agreement meeting the threshold for a "modern award."

The final orders of the Commission approved the collective agreement between the CFMEU and Cadeford Pty Ltd t/a Integra Floors for the specified period. The approval was contingent upon the agreement being registered with the Fair Work Commission. This decision provided clarity and certainty for both parties, ensuring compliance with the Fair Work Act and establishing fair terms for the employees.

Orders