Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1901

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/537)

BRL CONTRACTING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 1 APRIL 2014

Application for approval of the BRL Contracting Pty Ltd and CFMEU Union Collective Agreement 2014 - 2018.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 11 March 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the BRL Contracting Pty Ltd and CFMEU Union Collective Agreement 2014 - 2018(“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 Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of a collective agreement entered into with BRL Contracting Pty Ltd. The Fair Work Commission (FWC) was tasked with determining whether the agreement was in the best interests of the employees covered by it. The legal issues before the FWC were whether the terms of the agreement were fair and reasonable and whether the agreement adequately protected employees' rights and interests.

The FWC examined the agreement's provisions, including those related to wages, working conditions, and dispute resolution. The CFMEU argued that the agreement provided fair and reasonable terms for the employees, while BRL Contracting Pty Ltd contended that certain provisions were overly restrictive and not in the best interests of the employees. After considering the evidence and arguments presented by both parties, the FWC found that the agreement was fair and reasonable and in the best interests of the employees. The FWC approved the agreement, noting that it provided adequate protections for employees' rights and interests and that the provisions were not overly restrictive.

The FWC's decision was based on a careful consideration of the evidence and arguments presented by both parties. The FWC found that the agreement provided fair and reasonable terms for the employees and that it adequately protected their rights and interests. The FWC also noted that the agreement provided for effective dispute resolution mechanisms and that it was in line with relevant industry standards. The FWC's approval of the agreement ensures that employees covered by it will receive fair and reasonable terms of employment.

Construction, Forestry, Mining and Energy Union

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