Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 2160

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/636)

REO HS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 7 APRIL 2014

Application for approval of the REO HS 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 21 March 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the REO HS 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] 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] 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.

[5] 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.

[6] 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.

[7] 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 case before the Fair Work Commission involved an application for the approval of the REO HS Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The applicant, REO HS Pty Ltd, sought approval of the collective agreement which had been negotiated with the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred on whether the collective agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirements for good faith bargaining and the avoidance of protected action.

The legal issues that the Commission was required to address included whether the collective agreement had been made in good faith, whether it complied with the procedural requirements set out in the Fair Work Act, and whether the agreement contained any terms that would be unfair to employees or employers. The Commission also needed to consider whether the agreement appropriately balanced the interests of both parties and whether it adhered to the statutory requirements for approval of a collective agreement.

In its decision, the Fair Work Commission found that the collective agreement was made in good faith and complied with the procedural requirements of the Fair Work Act. The Commission noted that both parties had engaged in extensive negotiations and that the agreement reflected a balanced outcome for both employers and employees. The Commission also determined that the agreement did not contain any terms that would be unfair or unreasonable. Consequently, the Commission approved the collective agreement, finding it to be compliant with the statutory requirements and in the best interests of both parties.

The final orders of the Fair Work Commission were that the REO HS Pty Ltd and CFMEU Union Collective Agreement 2011-2015 be approved as a registered agreement under the Fair Work Act. The agreement was to be registered from the date of the Commission’s decision, and both parties were directed to give notice of the approval to their respective members and employees.

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