Construction, Forestry, Mining and Energy Union

[2013] FWCA 9006

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10021)

DECOR BLINDS AUSTRALIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 15 NOVEMBER 2013

Application for approval of the Decor Blinds Australia 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 7 November 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Decor Blinds Australia 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).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of a collective agreement between the Construction, Forestry, Mining and Energy Union (CFMEU) and Decor Blinds Australia Pty Ltd for the period 2011-2015. The Fair Work Commission was tasked with determining whether the agreement should be approved as a registered agreement under the Fair Work Act 2009. The legal issues centred on whether the agreement contained terms that were contrary to the public interest or that failed to comply with the requirements for approval as set out in the Act. Specifically, the court had to examine if the terms regarding the duration of the agreement and the provisions for resolving disputes were consistent with the legislative framework.

The Fair Work Commission held that the agreement was not contrary to the public interest and was compliant with the statutory requirements for approval. The Commission found that the duration of the agreement, while longer than typical agreements, did not pose any public interest concerns and was within the bounds of what was permissible under the legislation. Additionally, the dispute resolution provisions were deemed adequate and in line with the Act's requirements. Consequently, the Commission approved the agreement as a registered agreement.

The court's decision was based on a detailed examination of the agreement's terms, the relevant legislative provisions, and the public interest considerations. It found that the agreement met all necessary criteria and did not present any grounds for non-approval. The Fair Work Commission's approval of the agreement was thus upheld, and it was registered as a valid collective agreement between the parties.

The final orders of the court confirmed the approval of the agreement as a registered agreement, thereby allowing the terms to be enforceable under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established