Construction, Forestry, Mining and Energy Union

[2013] FWCA 8135

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10822)

BERTHSON TRUST T/A ZOOM A BROOM AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 OCTOBER 2013

Application for approval of the Berthson Trust T/A Zoom A Broom 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 10 October 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Berthson Trust T/A Zoom A Broom and CFMEU Union Collective Agreement 2011-2015 (“the Agreement”).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application.

[3] 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).

[4] For the further 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.”

[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 matter before the court involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for the approval of a collective agreement with Berthson Trust trading as Zoom A Broom for the period 2011-2015. The court was asked to determine whether the agreement met the legal standards set out in the Fair Work Act 2009. The CFMEU sought to have the agreement registered under the Act, which would give it legal effect and enforceability.

The central legal issue was whether the agreement contained any provisions that were contrary to the public interest or otherwise unlawful. The court was required to assess the agreement against the statutory criteria for approval, including whether it complied with the good faith bargaining requirements, the protection of employees' rights, and the avoidance of detriment to the employees or employers. Additionally, the court had to consider whether the agreement had been genuinely negotiated between the parties and whether it contained any provisions that were inconsistent with the principles of the Fair Work Act.

In its decision, the court carefully examined the terms of the agreement and found that it did not contain any provisions that were contrary to the public interest or otherwise unlawful. The court determined that the agreement had been genuinely negotiated between the parties and that it complied with the statutory criteria for approval. The court also found that the agreement contained provisions that protected the rights of employees and avoided any detriment to them or the employer. As a result, the court approved the agreement and ordered that it be registered under the Fair Work Act.

The court's decision was a significant victory for the CFMEU, which had argued that the agreement was necessary to protect the rights and interests of its members. The court's approval of the agreement ensured that it would have legal effect and could be enforced by the parties. The decision also provided clarity and guidance for future collective agreements in the industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established