Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 3393

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/1098)

CORPORATE CLEANING SERVICES BRISBANE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 22 MAY 2014

Application for approval of the Corporate Cleaning Services Brisbane 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 13 May 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Corporate Cleaning Services Brisbane 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] 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).

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the approval of the Corporate Cleaning Services Brisbane Pty Ltd and CFMEU Union Collective Agreement for the years 2011 to 2015. The applicant, Corporate Cleaning Services Brisbane Pty Ltd, sought the approval of the agreement, which had been negotiated with the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred on whether the agreement complied with the relevant statutory provisions under the Fair Work Act 2009.

The legal issues that the court had to address included whether the agreement contained all the mandatory terms prescribed by the Fair Work Act, whether the agreement was made in good faith and whether the agreement was free from any unlawful content. The court also had to consider whether the agreement was in the best interests of the employees and whether it complied with any other relevant legislation.

The Fair Work Commission found that the agreement did not contain all the mandatory terms required by the Fair Work Act. Specifically, the agreement did not include provisions for minimum rates of pay, overtime, penalty rates and allowances, which were required under the Act. The Commission also found that the agreement did not comply with the requirement that it be in writing and signed by the parties. As a result, the application for approval of the agreement was dismissed.

The Fair Work Commission emphasised the importance of ensuring that all mandatory terms are included in an agreement and that the agreement is in writing and signed by the parties. The Commission also highlighted the need for employers and unions to ensure that any agreement they negotiate is in the best interests of the employees and complies with all relevant legislation.

Construction, Forestry, Mining and Energy Union

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