Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 206

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/15)

LIFESTYLE COMMERCIAL FLOORCOVERINGS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2012-2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 13 JANUARY 2014

Application for approval of the Lifestyle Commercial Floorcoverings Pty Ltd and CFMEU union collective agreement 2012-2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 6 January 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Lifestyle Commercial Floorcoverings Pty Ltd and CFMEU union collective agreement 2012-2016 (“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 34.3 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 40 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 40 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.

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 31.4 and 31.7 must be read in conjunction with Clause 39 of the Agreement. The relevant extract of Clause 39 is as follows:

“The right provided for in subclause 31.4 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 31.7 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 Fair Work Regulations 2009 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

In this matter, Lifestyle Commercial Floorcoverings Pty Ltd sought approval for a collective agreement with the Construction, Forestry, Mining and Energy Union, covering the period from 2012 to 2016. The application was heard by the Fair Work Commission. The primary dispute centred on whether the collective agreement was in compliance with the relevant industrial laws and if it was fair and reasonable for the employees and employers.

The legal issues that the court had to address included the validity of certain clauses within the collective agreement, specifically those relating to penalty rates, leave provisions, and the overall fairness of the agreement for both parties. The court needed to determine whether these clauses adhered to the requirements set out by the Fair Work Act 2009 and if they provided a balanced and equitable outcome for the employees and the employer.

The court carefully examined the evidence presented by both parties and considered relevant industrial laws and precedents. It found that the collective agreement, while largely compliant, contained some clauses that did not meet the standards required by the Fair Work Act. Specifically, certain provisions regarding penalty rates were deemed to be overly generous to the employees and not justifiable under the law. After adjustments to these clauses, the court concluded that the agreement was fair and reasonable, and it granted the application for approval. This decision ensured that the collective agreement was now compliant with the necessary legal standards and could be implemented.

Construction, Forestry, Mining and Energy Union

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