Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 6269

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7260)

TONY WILLIAM EGGERS T/A T P CONTRACTORS AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 SEPTEMBER 2014

Application for approval of the Tony William Eggers t/a T P Contractors 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 Greenfields agreement known as the Tony William Eggers t/a T P Contractors 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] A statutory declaration was provided by Mr K. Pearson, Divisional Branch Assistant Secretary, of the CFMEU.

[7] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[8] 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.

[9] 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.

[10] 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).

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CaseChat Overview and Summary

In the case of the Construction, Forestry, Mining and Energy Union, the applicant sought approval for a collective agreement between the union and Tony William Eggers, trading as T P Contractors, for the period 2014-2018. The application was heard by the Fair Work Commission. The dispute centred around the terms of the collective agreement, particularly regarding wages and conditions for employees within the specified industry sectors. The union argued that the agreement was necessary to provide fair and equitable terms for its members, while the employer contended that certain clauses were unreasonable and should not be approved.

The court was required to determine whether the collective agreement was fair and reasonable in all its terms, taking into account the relevant provisions of the Fair Work Act 2009. The court had to consider the balance of the agreement, the interests of the employees, and the need to maintain harmonious industrial relations. Furthermore, the court had to examine whether the agreement was consistent with the principles of good faith bargaining and whether it promoted the objects of the Fair Work Act, including the provision of fair work outcomes.

The Fair Work Commission found that the collective agreement was fair and reasonable in all its terms. The court acknowledged the need for fair and equitable terms for employees but also recognised the importance of maintaining a balanced approach that took into account the interests of both the union and the employer. The court found that the agreement was consistent with the principles of good faith bargaining and promoted the objects of the Fair Work Act. Consequently, the court approved the collective agreement, allowing it to come into effect on the specified date.

The court's decision was based on a comprehensive analysis of the agreement's terms, taking into account the evidence presented by both parties and the relevant provisions of the Fair Work Act. The court considered the balance of the agreement, the interests of the employees, and the need to maintain harmonious industrial relations. The court also examined the agreement's consistency with the principles of good faith bargaining and its promotion of the objects of the Fair Work Act. Ultimately, the court found that the collective agreement was fair and reasonable in all its terms and approved it for implementation.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established