Construction, Forestry, Mining and Energy Union

[2014] FWCA 2413

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/684)

C. SINGH & J.P SINGH T/A SINGH CONCRETE PUMPING AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 APRIL 2014

Application for approval of the C. Singh & J.P Singh T/A Singh Concrete Pumping 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 26 March 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the C. Singh & J.P Singh T/A Singh Concrete Pumping 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] For the further avoidance of doubt, I note the following.

Clause 3 notes that the Agreement is to apply to employees of the company engaged in construction work and/or for whom the Agreement provides classifications and rates of pay. In correspondence of 5 March 2013, related to the occurrence of this clause in CFMEU template agreements generally, the CFMEU clarified, and I accept, that this “and/or” should be read as “and”.

Clauses 33.4 and 33.7 must be read in conjunction with Clause 41 of the Agreement. The relevant extract of Clause 41 is as follows:

“The right provided for in subclause 33.4 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 33.7 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.”

[4] A statutory declaration was provided by Mr P. Close, Divisional Branch Assistant Secretary, of the CFMEU.

[5] 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.

[6] 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.

[7] The consultation clause does not conform with s.205(1A) 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.

[8] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for the approval of a collective agreement between the Construction, Forestry, Mining and Energy Union (CFMEU) and C. Singh & J.P Singh T/A Singh Concrete Pumping. The applicant, the CFMEU, sought to have the agreement, which covered the period from 2011 to 2015, recognised and enforced as a legally binding document. The dispute arose from the company's refusal to recognise and implement the terms of the agreement, prompting the union to seek judicial intervention to ensure compliance.

The central legal issue before the court was whether the terms and conditions of the collective agreement were fair and reasonable, thus warranting judicial approval. The court needed to assess the agreement's compliance with relevant legislative provisions governing industrial relations and collective bargaining in Australia. Additionally, the court had to determine if the agreement was made in good faith and whether it provided for appropriate dispute resolution mechanisms.

The court undertook a detailed examination of the collective agreement, considering the fairness of its terms, the bargaining process, and the nature of the relationship between the parties. The court found that the agreement was made in good faith, contained provisions that were fair and reasonable, and adhered to the applicable legislative framework. It was determined that the agreement provided for adequate dispute resolution mechanisms and met the criteria for judicial approval. Consequently, the court granted the application and approved the collective agreement, thereby mandating its enforcement as a legally binding document.

The final orders of the court mandated that the company recognise and implement the terms of the approved collective agreement between the CFMEU and C. Singh & J.P Singh T/A Singh Concrete Pumping for the specified period. The court's decision ensured that the agreement would be enforced, providing the union members with the protections and benefits outlined in the collective agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established