Construction, Forestry, Mining and Energy Union

[2013] FWCA 8140

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10821)

TOWER CONSORTIUM PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 17 OCTOBER 2013

Application for approval of the Tower Consortium 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 10 October 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Tower Consortium Pty Ltd 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 Fair Work Commission involved an application for approval of a proposed collective agreement between the Tower Consortium Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the period 2011 to 2015. The Commission was tasked with determining whether the agreement was appropriate for endorsement given its terms and the context in which it was proposed. The applicant, Tower Consortium Pty Ltd, sought the Commission's approval to formalise the agreement, which had been negotiated between the parties, covering various aspects of employment conditions, wages, and other workplace-related matters.

The central legal issues before the Commission included whether the proposed agreement complied with the relevant statutory requirements and whether it was fair and reasonable in the context of the Fair Work Act 2009. The Commission had to assess whether the agreement adequately reflected the principles of enterprise bargaining and if it provided a fair and efficient means of resolving employment-related disputes. Furthermore, the Commission examined whether the agreement met the standards of good faith bargaining and whether it adequately balanced the interests of both the employer and the employees.

In delivering its decision, the Commission highlighted that the proposed agreement contained provisions that aligned with the statutory framework for enterprise bargaining, including provisions for minimum wages, working hours, and conditions of employment. The Commission found that the agreement was the product of genuine and good faith negotiations and that it provided a comprehensive and fair set of terms and conditions for the employees. The Commission approved the agreement, noting that it met the legislative requirements for endorsement and provided a balanced approach to addressing the interests of both parties. The Commission's decision was based on the thorough examination of the agreement's provisions and the context in which it was negotiated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established