Construction, Forestry, Mining and Energy Union

[2014] FWCA 3252

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/1012)

ELDRIDGE TOWER PTY LTD T/A ALL TYPE WELDING AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 16 MAY 2014

Application for approval of the Eldridge Tower Pty Ltd T/A All Type Welding 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 2 May 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Eldridge Tower Pty Ltd T/A All Type Welding 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

CaseChat Overview and Summary

The matter involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Eldridge Tower Pty Ltd T/A All Type Welding, with the Fair Work Commission (FWC) being the court. The CFMEU applied for approval of a proposed collective agreement between the parties. The dispute centred on whether the proposed agreement complied with the relevant legislative framework, specifically the Fair Work Act 2009 (Cth). The CFMEU sought to confirm the agreement as a protected action (picketing, etc.) and to have it recognised as a lawful industrial instrument.

The legal issues before the FWC were whether the proposed collective agreement met the criteria for approval under the Fair Work Act and whether it contained lawful and reasonable provisions. The CFMEU argued that the agreement was necessary to protect the rights of employees and maintain fair working conditions. Eldridge Tower, on the other hand, contended that certain provisions were not reasonable and were not necessary for the protection of employees' rights. The court had to consider the balance between the rights of employees to engage in protected industrial action and the rights of employers to conduct their business without undue interference.

In its decision, the FWC found that the proposed agreement generally complied with the requirements of the Fair Work Act. The court noted that the agreement contained lawful provisions and that the parties had negotiated in good faith. The FWC emphasised the importance of maintaining a balance between the rights of employees to engage in protected industrial action and the rights of employers to conduct their business. The court approved the agreement subject to certain modifications to ensure it complied with the Act and was fair and reasonable. These modifications included clarifying the scope of protected industrial action and ensuring that the agreement did not unduly restrict the operation of Eldridge Tower's business.

The FWC ordered that the agreement be approved with the specified modifications. The court directed the parties to implement the approved agreement and to take any necessary steps to ensure compliance with the Fair Work Act. The decision highlighted the need for collective agreements to be carefully negotiated and to comply with the relevant legislative framework to ensure that the rights of both employees and employers are protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established