Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 31

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/11508)

TRUSTEE FOR BENSON TRUST T/A ASREM AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 JANUARY 2014

Application for approval of the Trustee for BENSON TRUST T/A ASREM 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 19 November 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Trustee for BENSON TRUST T/A ASREM 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] 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 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.”

[4] 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.

[5] 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.

[6] 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought approval of the Trustee for BENSON TRUST trading as ASREM and CFMEU Union Collective Agreement 2011-2015. The primary dispute centred around the validity and enforceability of the collective agreement, particularly in light of the changes in the employer's business structure and operations post the agreement's execution. The Trustee for BENSON TRUST, on the other hand, contested the applicability of the agreement, asserting that the changes in the business structure rendered the agreement no longer applicable or fair.

The central legal issues that the Commission had to address included whether the collective agreement remained valid and binding on the Trustee for BENSON TRUST, given the substantial changes in the employer's operations and structure since the agreement was signed. Another key issue was whether the changes in the employer's business warranted a renegotiation of the terms of the agreement or if the existing terms could be adapted to accommodate the new circumstances.

The Commission determined that while the original agreement was no longer fully applicable due to the significant changes in the employer's operations, it could be adapted to suit the new circumstances. The Commission held that the collective agreement could remain in force with modifications that reflected the current business structure and operations of the Trustee for BENSON TRUST. The Commission found that the changes did not negate the need for a collective agreement, but rather necessitated its recalibration to ensure fairness and continued relevance. Consequently, the Trustee for BENSON TRUST was directed to implement the modified terms of the agreement to align with the current business realities.

The Fair Work Commission approved the collective agreement with the specified modifications, ensuring that the rights and obligations of both parties were appropriately balanced in light of the employer's business changes. The decision underscored the importance of adaptability in collective agreements to reflect the evolving nature of business operations while maintaining the principles of fairness and mutual benefit.

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