Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 5929

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7036)

DRS GROUP PTY LTD 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 DRS Group 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 7 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the DRS Group 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] 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).

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the approval of a collective agreement between DRS Group Pty Ltd and the Construction, Forestry, Mining and Energy Union for the period 2014 to 2018. The applicant, DRS Group, sought the Commission’s approval of the agreement which outlined terms and conditions of employment for workers within the organisation. The Union contested certain aspects of the agreement, raising issues regarding the fairness and reasonableness of specific provisions.

The central legal issue before the Commission was whether the collective agreement complied with the statutory requirements of the Fair Work Act 2009. Specifically, the Commission had to determine whether the agreement was made in good faith, was free from coercion and whether it contained terms that were fair and reasonable. The Union argued that several provisions in the agreement were not fair and reasonable, and that they had not been negotiated in good faith. Conversely, DRS Group maintained that the agreement was a product of genuine negotiations and that all provisions were fair and reasonable.

The Fair Work Commission, in considering the arguments, examined the negotiation process and the content of the agreement. The Commission found that the agreement was the result of genuine negotiations and did not contain any terms that were unfair or unreasonable. The Commission emphasised the importance of parties negotiating in good faith and arriving at an agreement that was fair and reasonable for all parties involved. Consequently, the Commission approved the collective agreement, finding it to be compliant with the statutory requirements. The Union’s objections were dismissed, and the agreement was approved for the stipulated period.

Construction, Forestry, Mining and Energy Union

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