Construction, Forestry, Mining and Energy Union

[2013] FWCA 8776

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9889)

MAKKON CIVIL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2013-2017

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 7 NOVEMBER 2013

Application for approval of the Makkon Civil Pty Ltd and CFMEU union collective agreement 2013-2017.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 24 October 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Makkon Civil Pty Ltd and CFMEU union collective agreement 2013-2017 (“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 matter before the Fair Work Commission involved an application by Makkon Civil Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the approval of a collective agreement spanning 2013-2017. The application was contested by Makkon Civil, who argued that certain provisions of the agreement were beyond the scope of the bargaining power of the union and were therefore invalid.

The legal issues central to the decision revolved around the validity of specific clauses within the collective agreement. Key points of contention included whether certain provisions, particularly those relating to conditions of employment such as pay rates, hours of work, and the imposition of additional obligations on employees, were within the union's bargaining power and whether they complied with the applicable industrial laws and regulations. The court had to determine whether the agreement was fair and reasonable, taking into account the balance of bargaining power between the employer and the union.

In its reasoning, the Commission examined the nature of the bargaining process and the specific provisions of the agreement. It considered whether the provisions in question were reasonable and necessary for the protection of the employees' interests, given the bargaining power of the union and the employer. The Commission found that while some of the provisions were within the union's bargaining power, others were considered beyond it, particularly those that imposed additional obligations on employees without a corresponding benefit. Consequently, the Commission decided to disallow those provisions that exceeded the union's bargaining power, while approving the rest of the agreement.

The Fair Work Commission ultimately approved the collective agreement with modifications, disallowing the specific provisions found to be beyond the union's bargaining power. This decision ensured that the agreement was fair, reasonable, and complied with the applicable industrial laws, while also protecting the legitimate bargaining interests of both the employer and the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established