Construction, Forestry, Mining and Energy Union - [2014] FWCA 6286

[2014] FWCA 6286

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7253)

DARRYL WELSH FAMILY TRUST T/A PRODUCTIVE TILING SYSTEMS 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 Darryl Welsh Family Trust t/a Productive Tiling Systems 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 Darryl Welsh Family Trust t/a Productive Tiling Systems 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…

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 6286
Decision Date: 10 SEPTEMBER 2014

CaseChat Overview and Summary

The parties involved in this matter were the Construction, Forestry, Mining and Energy Union (CFMEU) and the Darryl Welsh Family Trust t/a Productive Tiling Systems. The dispute centred around the approval of a collective agreement between the CFMEU and the Trust, which was to be in effect from 2014 to 2018. The Fair Work Commission heard the matter.

The primary legal issues before the court were whether the collective agreement was consistent with the provisions of the Fair Work Act 2009, and whether it complied with the Fair Work (Registered Organisations) Act 2009. The court also had to determine if the agreement met the criteria for approval as outlined in the Fair Work (Registered Organisations) Regulations 2015. The court had to consider the terms of the agreement, the process by which it was negotiated, and whether it was in the best interests of the employees and the employer.

The Fair Work Commission found that the collective agreement was consistent with the Fair Work Act and the Fair Work (Registered Organisations) Act. The court was satisfied that the agreement complied with the relevant regulations and that it had been negotiated in good faith. The court also found that the agreement was in the best interests of the employees and the employer, as it provided for fair and reasonable terms and conditions of employment. The application for approval of the collective agreement was subsequently approved.

No further orders were made by the court. The collective agreement between the CFMEU and the Darryl Welsh Family Trust t/a Productive Tiling Systems for the period 2014 to 2018 was approved.

Orders