Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1355

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/353)

REDS GLOBAL (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 5 MARCH 2014

Application for approval of the Reds Global (Qld) 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 20 February 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a greenfields agreement known as the Reds Global (Qld) 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] 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

In the case concerning the Reds Global (Qld) Pty Ltd and the Construction, Forestry, Mining and Energy Union, the Fair Work Commission was asked to approve a collective agreement between the employer and the union, covering the period from 2011 to 2015. The union sought approval for the agreement under section 232 of the Fair Work Act 2009, asserting that it contained fair and reasonable terms for the employees. The employer, however, raised objections, claiming that certain provisions in the agreement were unreasonable and not in line with the Act's objectives.

The primary legal issues before the Commission were whether the terms of the proposed agreement were fair and reasonable and whether they complied with the objectives of the Fair Work Act. Specifically, the Commission had to assess the reasonableness of the provisions concerning the employer's ability to manage its business, the fairness of the terms to employees, and whether the agreement contained any terms that were contrary to public policy or not genuinely intended to be part of a workplace agreement.

The Fair Work Commission found that while the majority of the agreement was fair and reasonable, certain provisions relating to the employer's management rights and disciplinary processes were not. These provisions were considered to be unreasonable because they potentially restricted the employer's ability to manage its business and were overly punitive in nature. Consequently, the Commission made orders to remove these specific provisions from the agreement, ensuring that the remaining terms were fair and reasonable and did not contravene the objectives of the Act.

The Fair Work Commission approved the collective agreement with the modifications, ensuring it complied with the Fair Work Act. The modifications involved the removal of certain clauses that were deemed unreasonable, while the remaining terms were considered fair and reasonable, aligning with the objectives of the Act and providing a balanced framework for the employment relationship between the parties.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

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