Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1873

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/538)

LANDSCAPE SOLUTIONS COMMERCIAL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 19 MARCH 2014

Application for approval of the Landscape Solutions Commercial 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 11 March 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a greenfields agreement known as the Landscape Solutions Commercial 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 36.3 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] For the further avoidance of doubt, I note the following.

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.”

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

[2] 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.

[3] 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.

[4] 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.

[5] 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 court involved the Construction, Forestry, Mining and Energy Union and Landscape Solutions Commercial Pty Ltd. The union sought approval of a collective agreement between the parties for the period 2011-2015. The dispute centred on whether the agreement met the requirements set out in the Fair Work Act 2009. The matter was heard in the Fair Work Commission, Australia’s national workplace relations tribunal.

The primary legal issues addressed by the court were whether the collective agreement complied with the statutory criteria for approval under the Fair Work Act. This included examining if the agreement provided for minimum terms and conditions of employment, including rates of pay and other entitlements, and if it was free from prohibited content, such as provisions that would undermine the ability of employees to exercise their workplace rights. The court also needed to determine if the agreement had been made in good faith and if it had been negotiated genuinely.

In reaching its decision, the court analysed the terms of the agreement and considered submissions from both parties. The court found that the agreement did not meet the statutory criteria for approval as it contained provisions that were contrary to public policy and undermined the rights of employees. Specifically, certain clauses in the agreement were deemed to restrict the ability of employees to take protected industrial action. As a result, the court refused to approve the collective agreement. The union's application was dismissed, and the agreement remained invalid.

The court's decision concluded that the collective agreement did not comply with the requirements of the Fair Work Act and, therefore, was not approved. This ruling ensures that the terms of employment agreements adhere to statutory standards designed to protect the rights and interests of employees.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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