Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 6018

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7091)

C.B.D. LANDSCAPE CONSTRUCTION PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 1 SEPTEMBER 2014

Application for approval of the C.B.D. Landscape Construction 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 12 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the C.B.D. Landscape Construction 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] In relation to clause 42 of the Agreement (“visa compliance” - which I note to be incorrectly numbered) 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 42 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.

[4] For the further avoidance of doubt, I note the following.

Clauses 33.4 and 33.7 must be read in conjunction with Clause 41 of the Agreement. The relevant extract of Clause 41 is as follows:

“The right provided for in subclause 33.4 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 33.7 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.”

[5] 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.

[6] 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.

[7] 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.

[8] 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

The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for a collective agreement with C.B.D. Landscape Construction Pty Ltd. The application was made to the Fair Work Commission, where the union and the employer had been unable to reach an agreement on their own. The crux of the dispute centred around the terms and conditions of employment, particularly those related to wages, working hours, and workplace safety. The CFMEU argued that the proposed agreement would ensure fair and safe working conditions for its members, while the employer contended that some provisions were too stringent and could adversely affect its business operations.

The central legal issues before the Commission were whether the provisions of the proposed agreement complied with the relevant federal industrial legislation and whether the agreement could be approved under the Fair Work Act 2009. The Commission had to examine each clause of the agreement to determine if they adhered to the principles of the Act, particularly focusing on provisions that might be considered unfair or unreasonable. Additionally, the Commission needed to assess if the agreement provided for a fair and efficient resolution of workplace disputes, and if it promoted a productive and harmonious workplace.

After thorough examination, the Fair Work Commission found that the majority of the provisions in the proposed agreement were fair and reasonable. The Commission determined that the agreement, as a whole, was in compliance with the Fair Work Act 2009 and would likely result in improved working conditions for employees. The Commission acknowledged the importance of ensuring workplace safety and fair wages, and it deemed that the agreement appropriately balanced the interests of both the employer and the employees. Consequently, the Commission approved the application, allowing the collective agreement to be implemented between the parties.

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