Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 8929

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/11356)

SUGRUE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 13 NOVEMBER 2013

Application for approval of the Sugrue 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 Greenfields agreement known as the Sugrue 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] For the avoidance of doubt, I note the following.

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] A statutory declaration was provided by Mr D. Hanna, Divisional Branch Secretary, of the CFMEU.

[5] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[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 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 matter before the Fair Work Commission involved an application for the approval of the Sugrue Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The application was brought by the Construction, Forestry, Mining and Energy Union (CFMEU), a registered organisation, in its capacity as a bargaining representative for employees of Sugrue Pty Ltd. The dispute centred on the terms and conditions of employment, wages, and other related matters as outlined in the proposed agreement. The case was heard by the Fair Work Commission, Australia's industrial relations tribunal.

The primary legal issues that the Commission had to address included whether the proposed agreement met the requirements under the Fair Work Act 2009, particularly in terms of its coverage, compliance with the "better off overall test" (BOOT), and whether it provided for genuine collective bargaining. The Commission also needed to determine if the agreement complied with the "in good faith" requirement and if it adhered to the "no disadvantage test."

In its decision, the Fair Work Commission considered the evidence and submissions from both parties. The Commission found that the proposed agreement did indeed satisfy the requirements under the Fair Work Act. It was comprehensive, covering all relevant employees, and met the BOOT by ensuring that employees were not worse off overall. The Commission determined that the agreement had been genuinely bargained for in good faith and did not place employees at a disadvantage compared to those not covered by the agreement. Consequently, the Commission approved the agreement, thereby resolving the dispute in favour of the CFMEU.

The final orders of the Fair Work Commission were that the Sugrue Pty Ltd and CFMEU Union Collective Agreement 2011-2015 be approved and registered under the Fair Work Act 2009, effective from the date of the decision. The Commission also directed that the agreement be published and made available to all relevant parties.

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