Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1915

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/545)

IJF QUEENSLAND PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 20 MARCH 2014

Application for approval of the IJF Queensland 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 12 March 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the IJF Queensland 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] 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for the Industrial, Manufacturing and Mining Workers’ Union Queensland Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The application for approval was opposed by the Queensland Building and Construction Employers Association. The primary dispute centred on whether the collective agreement complied with the statutory requirements and provisions of the Fair Work Act 2009.

The legal issues before the court were whether the agreement contained all necessary terms and conditions as required by the Fair Work Act, whether it adhered to the "better off overall test" and whether it complied with the procedural requirements of the Act. Specifically, the court had to consider whether the agreement provided for minimum terms, whether it was fairly negotiated, and whether it was appropriate to make the approval order under the Act.

The court found that the agreement substantially complied with the statutory requirements. It was determined that the agreement met the "better off overall test" as it provided for conditions that were no less favourable than the applicable award or safety net. The court also found that the agreement was fairly negotiated, and all procedural requirements were satisfied. The court approved the application, finding that the agreement was appropriate to be approved under the Fair Work Act. Consequently, the court made an order approving the agreement.

The final order of the court was that the Industrial, Manufacturing and Mining Workers’ Union Queensland Pty Ltd and CFMEU Union Collective Agreement 2011-2015 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered by the Registrar of the Fair Work Commission and would be in effect from 1 January 2011 to 31 December 2015.

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