Construction, Forestry, Mining and Energy Union

[2013] FWCA 8894

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9990)

SKYRISE CURTAIN WALL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 12 NOVEMBER 2013

Application for approval of the Skyrise Curtain Wall 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 5 November 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Skyrise Curtain Wall 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] A statutory declaration was provided by Mr M. Ravbar, Divisional Branch Secretary, of the CFMEU.

[7] 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.

[8] 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.

[9] 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

The Construction, Forestry, Mining and Energy Union applied for the approval of a collective agreement with Skyrise Curtain Wall Pty Ltd for the period 2011 to 2015. The Fair Work Commission was required to determine whether the agreement complied with the requirements of the Fair Work Act 2009. The union argued that the agreement was in the best interests of the employees, while the employer contended that certain provisions were unreasonable and would hinder its business operations.

The legal issues before the court included whether the collective agreement met the criteria for approval under section 233 of the Fair Work Act. This involved assessing whether the agreement provided for fair and efficient terms and conditions, and whether any provisions were unreasonable. The court had to balance the interests of the employees, represented by the union, with those of the employer.

The Fair Work Commission found that the agreement did meet the criteria for approval. The court acknowledged the union's argument that the agreement was in the best interests of the employees, considering the specific nature of the industry and the need for fair and efficient terms. The court also found that none of the provisions were unreasonable, as they were necessary to ensure the fair treatment of employees and did not unduly hinder the employer's operations.

The Fair Work Commission approved the collective agreement, subject to the parties notifying the Commission of any changes or terminations. The decision underscored the importance of achieving a balance between the interests of employees and employers in the approval of collective agreements.

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