Construction, Forestry, Mining and Energy Union

[2014] FWCA 5934

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7037)

GRANT STODULKA T/A G.S PROJECTS AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 27 AUGUST 2014

Application for approval of the Grant Stodulka T/A G.S Projects 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 7 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Grant Stodulka T/A G.S Projects 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).

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of a collective agreement entered into with Grant Stodulka, trading as G.S Projects, for the period 2014 to 2018. The CFMEU sought to have the agreement approved as a registered agreement under the Fair Work Act 2009, which would provide for its enforcement and ensure its terms were upheld. The Commission was tasked with determining whether the agreement met the statutory criteria for registration, including that it did not undermine the ability of employees to protect their own interests, contained no terms that were less favourable than the relevant modern awards, and was not contrary to public policy.

The primary legal issue before the Commission was whether the terms of the agreement were consistent with the requirements set out in the Fair Work Act. Specifically, the Commission needed to assess whether the agreement contained terms that were less favourable than the relevant modern awards, whether it undermined the ability of employees to protect their own interests, and whether any of its terms contravened public policy. Additionally, the Commission considered whether the agreement had been made in good faith and whether it was appropriate for registration given its potential impact on the employees' rights and protections under the Act.

The Fair Work Commission found that the agreement did not contain terms that were less favourable than the relevant modern awards and did not undermine the ability of employees to protect their own interests. The Commission also determined that the agreement did not contravene public policy and had been made in good faith. The Commission concluded that the agreement met the statutory criteria for registration and approved the collective agreement between the CFMEU and Grant Stodulka, trading as G.S Projects, for the period 2014 to 2018. The decision was based on the Commission's finding that the agreement provided appropriate protections for the employees and did not include any terms that were detrimental to their interests or in conflict with public policy.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established