Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 5206

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/1844)

TU PROJECTS (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014-2018

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

Application for approval of the Tu Projects (Qld) 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 21 July 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Tu Projects (Qld) 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] 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

In the matter of an application for approval of the Tu Projects (Qld) Pty Ltd and Construction, Forestry, Mining and Energy Union (CFMEU) union collective agreement 2014-2018, the Fair Work Commission (FWC) was tasked with assessing the fairness and compliance of the proposed agreement. The agreement sought approval under section 235 of the Fair Work Act 2009. The applicant, Tu Projects (Qld) Pty Ltd, a construction company, and the CFMEU, a trade union representing construction workers, sought to have their collective agreement ratified by the Commission. This agreement covered terms and conditions of employment for workers within the construction industry in Queensland.

The legal issues before the FWC included whether the proposed agreement was consistent with the principles of the Fair Work Act, whether it was free from prohibited content, and if it met the requirements for procedural fairness. The FWC needed to ensure the agreement did not contain any terms that were contrary to public policy or that could undermine the integrity of the industrial relations system. Additionally, the Commission had to verify that the agreement was made following appropriate consultation and negotiation processes.

In delivering its decision, the FWC found that the proposed agreement was largely compliant with the statutory requirements. The Commission noted that while some aspects of the agreement could be seen as more favourable to the union, they were within the bounds of what could be considered fair and reasonable. The FWC concluded that the agreement did not contain any terms that were contrary to public policy or that would undermine the industrial relations system. Furthermore, the Commission determined that the negotiation process had been conducted appropriately, with adequate consultation between the parties. Consequently, the FWC approved the collective agreement subject to certain minor amendments to ensure complete compliance with the Act.

The Fair Work Commission ordered the approval of the collective agreement between Tu Projects (Qld) Pty Ltd and the CFMEU, with the stipulation that the minor amendments be incorporated. The approved agreement would then govern the terms and conditions of employment for the workers within the specified period, ensuring a legally binding framework for industrial relations 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