Construction, Forestry, Mining and Energy Union

[2014] FWCA 5690

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/6964)

ALL-STATE FITOUTS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014-2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 20 AUGUST 2014

Application for approval of the All-State Fitouts 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 4 August 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the All-State Fitouts 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 J. Ingham, 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

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of a collective agreement with All-State Fitouts Pty Ltd, covering the period from 2014 to 2018. The matter was heard in the Fair Work Commission, where the CFMEU sought to have the collective agreement registered and declared applicable to all employees of All-State Fitouts Pty Ltd. The employer contested the application, arguing that the agreement was not genuinely negotiated and contained provisions that were inconsistent with industrial laws.

The central legal issue before the Commission was whether the collective agreement was genuinely negotiated and whether it complied with relevant industrial laws. The Commission had to consider whether the agreement was entered into by the parties freely and without any undue influence, coercion, or pressure. It also needed to assess if the agreement contained terms that were consistent with the provisions of the Fair Work Act 2009 and other relevant industrial laws. The CFMEU argued that the agreement was genuinely negotiated and contained provisions that were fair and reasonable. In contrast, All-State Fitouts Pty Ltd contended that the agreement did not reflect genuine negotiations and contained terms that were inconsistent with industrial laws.

The Commission found that the collective agreement was genuinely negotiated and contained terms that were consistent with industrial laws. It determined that the CFMEU had demonstrated that the agreement was entered into without any undue influence, coercion, or pressure. The Commission also found that the terms of the agreement were fair and reasonable and did not contravene any provisions of the Fair Work Act 2009 or other relevant industrial laws. Consequently, the Commission approved the collective agreement and declared it applicable to all employees of All-State Fitouts Pty Ltd. This decision underscores the importance of genuine negotiations in the formation of collective agreements and the need for compliance with industrial laws.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established