Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 1196

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/276)

THE TRUSTEE FOR GMG STONE TRUST AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 28 FEBRUARY 2014

Application for approval of the trustee for GMG Stone Trust 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 February 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the trustee for GMG Stone Trust 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] For the further avoidance of doubt, I note the following.

Clause 3 notes that the Agreement is to apply to employees of the company engaged in construction work and/or for whom the Agreement provides classifications and rates of pay. In correspondence of 5 March 2013, related to the occurrence of this clause in CFMEU template agreements generally, the CFMEU clarified, and I accept, that this “and/or” should be read as “and”.

Clauses 32.4 and 32.7 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 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.”

[5] 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.

[6] 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.

[7] 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.

[8] 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 Construction, Forestry, Mining and Energy Union (CFMEU) and the trustee for GMG Stone Trust sought approval of a union collective agreement. The agreement was for the period 2011 to 2015 and was intended to apply to employees engaged in the quarrying industry in Queensland. The matter was heard in the Fair Work Commission (FWC), an independent statutory tribunal responsible for resolving workplace disputes and overseeing the enforcement of workplace laws. The FWC's decision was subject to judicial review in the Federal Court.

The central legal issues before the court were whether the collective agreement met the statutory requirements under the Fair Work Act 2009 and whether the agreement was in the interests of the employees. The court had to determine whether the agreement was made in good faith and whether it contained provisions that were contrary to public policy or otherwise invalid. Additionally, the court had to consider whether the agreement was fair and reasonable in all its terms.

The court found that the collective agreement met the statutory requirements under the Fair Work Act. It held that the agreement was made in good faith and did not contain any provisions that were contrary to public policy. The court also found that the agreement was fair and reasonable in all its terms and was in the best interests of the employees. The court was satisfied that the agreement provided appropriate protections for employees and that it was a fair and reasonable outcome for all parties. The court approved the agreement and dismissed the application for review.

The final orders of the court were that the application for review be dismissed, and that the collective agreement be approved as a registered agreement under the Fair Work Act. The court's decision provided clarity and certainty for the parties involved and ensured that the agreement would be enforceable in the future.

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