Construction, Forestry, Mining and Energy Union - [2014] FWCA 6273

[2014] FWCA 6273

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7255)

PHD SHOPFITTING PTY LTD 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 PHD Shopfitting 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 26 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the PHD Shopfitting 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…

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 6273
Decision Date: 10 SEPTEMBER 2014

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of the PHD Shopfitting Pty Ltd and CFMEU union collective agreement 2014 - 2018. The employer, PHD Shopfitting, opposed the approval on the basis that the agreement contained provisions that were not in accordance with the Fair Work Act 2009 (Cth). The dispute centred around specific clauses in the agreement which the employer argued were unfair and contrary to the provisions of the Act.

The legal issues that the Commission was required to decide included whether the provisions of the agreement were consistent with the Act, and specifically, whether certain clauses regarding the calculation of penalty rates, shift differentials and the classification of employees were permissible under the legislation. The Commission also needed to consider whether the agreement complied with the good faith bargaining requirements and if the union had acted appropriately in the negotiation and execution of the agreement.

The Commission found that the provisions in question were consistent with the Fair Work Act and were not unfair. The Commission determined that the agreement was the product of genuine and good faith bargaining between the parties, and the union had not acted in a manner that breached any legislative provisions. The Commission also held that the clauses concerning the calculation of penalty rates, shift differentials and employee classification were not contrary to the Act, and therefore, the agreement was approved in its entirety. The employer's application for approval was dismissed.

The Fair Work Commission approved the PHD Shopfitting Pty Ltd and CFMEU union collective agreement 2014 - 2018 in its entirety. The employer's application for refusal of approval was dismissed, and the agreement was registered.

Orders