Construction, Forestry, Mining and Energy Union

[2014] FWCA 46

[2014] FWCA 46

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/11518)

ACROW FORMWORK AND SCAFFOLDING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 3 JANUARY 2014

Application for variation of the Acrow Formwork and Scaffolding Pty Ltd and CFMEU Union Collective Agreement 2011-2015.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a variation to the Acrow Formwork and Scaffolding Pty Ltd and CFMEU Union Collective Agreement 2011-2015 (“the Agreement”).

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot, and was approved by a majority of employees in a ballot. The CFMEU, as an employee organisation covered by the Agreement, provided a statutory declaration in support of the variation.

[3] The Agreement is varied by deleting clause 3 - Application of Agreement - and replacing it with the following:

“Application of Agreement

This Agreement applies to Acrow Formwork and Scaffolding Pty Ltd (ACN: 004 284 806), hereinafter referred to as “the company”, the CFMEU signatory to this Agreement and all employees of the company engaged in building and construction work and/or for whom classifications and rates of pay are provided by this agreement. This agreement however, only applies to work done in Queensland and to work done outside Queensland by employees who are based in Queensland.”

[4] The variation is approved and will come into operation on 3 January 2014.

[5] To these considerations, I add the following further observations and remarks.

[6] Firstly, the application before me, on its face, does not suggest the variation arises by way of a bargaining representative seeking an extra or additional claim. In any event, the Agreement does not include a no extra claims clause.

[7] Secondly, when varying an agreement, the Commission must approve the agreement as if it were a new application. Accordingly:

• 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).



• 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 33.4 and 33.7 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 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 consolidated copy of the Agreement is attached to this decision.

SENIOR DEPUTY PRESIDENT

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