Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 9170

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10102)

ARC JOINERY PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 20 NOVEMBER 2013

Application for approval of the Arc Joinery 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 15 November 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Arc Joinery 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] 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.”

[5] 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.

[6] 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.

[7] 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 parties involved in the dispute were the Construction, Forestry, Mining and Energy Union (CFMEU) and Arc Joinery Pty Ltd, with the Fair Work Commission adjudicating. The matter concerned an application for the approval of a collective agreement between the two parties for the period 2011-2015. The primary issue before the court was whether the collective agreement complied with the relevant statutory provisions and whether it contained any terms that were unfair or unreasonable. The CFMEU argued that the agreement was fair and equitable, while Arc Joinery contended that certain terms were unreasonable and not in line with the legislative requirements.

The court examined the collective agreement in detail, considering the specific terms and conditions proposed. It assessed whether the agreement met the criteria for approval under the Fair Work Act, including whether the agreement promoted harmonious, productive and equitable workplace relations. The court also evaluated the reasonableness of the proposed terms, taking into account factors such as the nature of the industry, the bargaining power of the parties, and the overall fairness of the agreement. The court held that the agreement contained terms that were unreasonable and not compliant with the statutory requirements, and thus could not be approved.

As a result of the court's findings, the application for approval of the collective agreement was dismissed. The court determined that the agreement did not meet the necessary criteria for approval and contained terms that were unfair or unreasonable. The court did not grant the approval sought by the CFMEU, and the collective agreement remained ineffective. The decision underscored the importance of ensuring that collective agreements comply with legislative requirements and promote fair and equitable workplace relations.

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