Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 9813

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10368)

TRUSTEE FOR BBB TRUST T/A BRISBANE BRICK AND BLOCK PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 DECEMBER 2013

Application for approval of the Trustee for BBB Trust t/a Brisbane Brick and Block 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 6 December 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Trustee for BBB Trust t/a Brisbane Brick and Block 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] 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

1 Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

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CaseChat Overview and Summary

The parties involved in this case were the Trustee for BBB Trust trading as Brisbane Brick and Block Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute arose from an application for the approval of a collective agreement between the two parties for the period 2011-2015. The application was heard by the Fair Work Commission (FWC). The central legal issue before the FWC was whether the collective agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the FWC had to determine whether the agreement was genuinely negotiated, provided for a fair and efficient workplace, and did not undermine the right of employees to be represented by a union of their choice.

The FWC examined the evidence provided by both parties and considered the principles of genuine negotiation and good faith bargaining. The Trustee argued that the agreement was the result of a genuine negotiation process, while the CFMEU contended that the agreement did not meet the necessary standards. The FWC found that the agreement had been genuinely negotiated and was fair and efficient, taking into account the specific circumstances of the industry and the parties involved. The Trustee's evidence demonstrated a process of good faith bargaining, and the FWC was satisfied that the agreement did not undermine the right of employees to be represented by a union of their choice.

Consequently, the FWC approved the collective agreement between the Trustee for BBB Trust and the CFMEU for the period 2011-2015. The approval was based on the FWC's finding that the agreement met the necessary criteria under the Fair Work Act 2009. The decision highlighted the importance of genuine negotiation and good faith bargaining in the collective bargaining process. The FWC's approval of the agreement provided certainty for both parties and ensured that the terms of the agreement would be enforceable.

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