Construction, Forestry, Mining and Energy Union

[2014] FWCA 2201

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/638)

SEAN KENNETH MORRISON T/A EAST COAST CONCRETE SOLUTIONS AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 APRIL 2014

Application for approval of the Sean Kenneth Morrison T/A East Coast Concrete Solutions 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 greenfields agreement known as the Sean Kenneth Morrison T/A East Coast Concrete Solutions 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] A statutory declaration was provided by Mr P. Close, Assistant Divisional Branch Secretary, of the CFMEU.

[7] 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.

[8] 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.

[9] The consultation clause in the Agreement 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 and is attached to the Agreement.

[10] 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 before the Fair Work Commission involved an application for approval of a collective agreement between the Construction, Forestry, Mining and Energy Union (CFMEU) and Sean Kenneth Morrison trading as East Coast Concrete Solutions for the period 2011-2015. The union sought approval of the agreement under section 235 of the Fair Work Act 2009, which allows for the registration of agreements that provide for the pay and conditions of employees. The applicant argued that the agreement was fair and reasonable and provided appropriate protections for employees.

The central legal issue before the Commission was whether the agreement was genuinely a bargain between the parties and whether it met the criteria for approval under the Fair Work Act. The Commission had to consider whether the agreement was negotiated in good faith, provided for fair and reasonable terms and conditions of employment, and did not undermine the fundamental rights of employees. The Commission also had to determine whether the agreement met the "better off overall test," which required that the agreement provided employees with a better outcome than they would have received under the applicable awards or agreements.

The Commission found that the agreement was genuinely a bargain between the parties and met the criteria for approval under the Fair Work Act. The Commission accepted that the agreement was negotiated in good faith and provided for fair and reasonable terms and conditions of employment. The Commission also found that the agreement met the "better off overall test" and provided employees with a better outcome than they would have received under the applicable awards or agreements. The Commission noted that the agreement provided for improved pay rates, increased leave entitlements, and better protections for employees. The Commission approved the agreement, and it became registered under the Fair Work Act.

The Commission's decision provides useful guidance for employers and unions seeking to negotiate and approve collective agreements. The decision reinforces the importance of genuine bargaining and the need for agreements to provide fair and reasonable terms and conditions of employment. The decision also highlights the importance of meeting the "better off overall test" and the need for agreements to provide employees with a better outcome than they would have received under the applicable awards or agreements. The decision provides a useful framework for future negotiations and approvals of collective agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established