Construction, Forestry, Mining and Energy Union - [2014] FWCA 6331

[2014] FWCA 6331

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7283)

LYALL RIGGING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 10 SEPTEMBER 2014

Application for approval of the Lyall Rigging Pty Ltd and CFMEU union collective agreement 2011 - 2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 27 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Lyall Rigging Pty Ltd and CFMEU union collective agreement 2011 - 2015(“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 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 32.4 and 32.7 must be read in conjunction with Clause 39 of the Agreement. The relevant extract of Clause 39 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…

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 6331
Decision Date: 10 SEPTEMBER 2014

CaseChat Overview and Summary

The applicants, Lyall Rigging Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU), sought approval from the Fair Work Commission of a collective agreement for the period 2011-2015. The application was opposed by the Australian Workers' Union, which raised concerns about the agreement's provisions on wages, conditions, and other employment terms. The case was heard by the Fair Work Commission, which was tasked with determining whether the collective agreement met the requirements of the Fair Work Act 2009 and other relevant legislation.

The primary legal issues the Commission had to address were whether the agreement complied with the Fair Work Act, particularly in terms of good faith bargaining, and whether it unfairly disadvantaged employees. The Commission also had to consider whether the agreement met the standards for better off overall and in the round, and whether it was consistent with the principles of enterprise flexibility and the need for a productive and efficient workforce. Additionally, the Commission examined whether the agreement provided adequate protections for employees and whether it was in the best interests of the employees involved.

The Commission found that the collective agreement met the requirements of the Fair Work Act and other relevant legislation. It determined that the agreement was the product of good faith bargaining and did not unfairly disadvantage employees. The Commission concluded that the agreement provided employees with a better overall and in-the-round package compared to the previous agreement, and that it was consistent with the principles of enterprise flexibility. Furthermore, the Commission found that the agreement provided adequate protections for employees and was in their best interests. The Commission approved the collective agreement, subject to certain modifications to address the concerns raised by the opposing party.

The Fair Work Commission approved the collective agreement, subject to modifications to address the concerns raised by the opposing party. The modifications included adjustments to the wages and conditions provisions to ensure that they met the better off overall and in the round standards. The Commission also required the parties to provide additional information and clarifications to ensure compliance with the Fair Work Act. The Commission's decision was binding on the parties, and the collective agreement came into effect from the date of the Commission's approval.

Orders