Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 6296

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7276)

GERARD O'FLYNN PTY LTD T/A O'FLYNN BUILDERS AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

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

Application for approval of the Gerard O'Flynn Pty Ltd t/a O'Flynn Builders 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 27 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Gerard O’Flynn Pty Ltd t/a O’Flynn Builders 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

The case before the Fair Work Commission involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Gerard O'Flynn Pty Ltd t/a O'Flynn Builders. The CFMEU sought approval for a collective agreement between itself and O'Flynn Builders, spanning from 2014 to 2018. The dispute centred around the terms and conditions of employment and the fairness of the proposed agreement under the Fair Work Act 2009.

The legal issues before the court were whether the collective agreement met the requirements for approval under the Fair Work Act. Specifically, the court needed to determine if the agreement was fair and balanced, whether it allowed for genuine flexibility and productivity improvements, and if it was consistent with the safety, health, and welfare provisions of the Act. Additionally, the court considered whether the agreement provided appropriate mechanisms for resolving workplace disputes and ensuring procedural fairness.

In its reasoning, the Fair Work Commission noted that the agreement was largely consistent with the principles of the Fair Work Act. It found that the agreement allowed for flexibility and productivity improvements, and that the terms were fair and balanced between the parties. The Commission also determined that the agreement did not undermine the safety, health, and welfare provisions of the Act and included appropriate mechanisms for resolving workplace disputes. Ultimately, the Commission approved the collective agreement, finding that it met the statutory requirements for fairness and balance.

The Fair Work Commission approved the Gerard O'Flynn Pty Ltd t/a O'Flynn Builders and CFMEU union collective agreement for the period 2014 to 2018. The approval was subject to the terms and conditions as outlined in the agreement, ensuring compliance with the Fair Work Act.

Construction, Forestry, Mining and Energy Union

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