Construction, Forestry, Mining and Energy Union

[2013] FWCA 7583

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9560)

WILLIS BROS INSTALLATIONS (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 30 SEPTEMBER 2013

Application for approval of the Willis Bros Installations (Qld) 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 24 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Willis Bros Installations (Qld) 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] 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.”

[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 by the Construction, Forestry, Mining and Energy Union for approval of a collective agreement between the union and Willis Bros Installations (Qld) Pty Ltd for the period 2011 to 2015. The union sought to have the agreement registered under the Fair Work Act 2009. The primary dispute was whether the proposed agreement complied with the provisions of the Fair Work Act and the Fair Work Regulations 2009.

The legal issues before the Commission included whether the agreement contained terms that were contrary to the 'better off overall test', which requires that employees be no worse off financially than they would be under their existing awards or agreements. Additionally, the Commission needed to determine if the agreement included any terms that were contrary to public policy or contrary to the objects of the Fair Work Act. The Commission also had to consider whether the agreement provided adequate protections for employees in terms of minimum wages, leave entitlements, and other employment conditions.

The Commission found that the agreement met the 'better off overall test' and did not include any terms that were contrary to public policy or the objects of the Fair Work Act. The Commission did, however, make some minor amendments to the agreement to ensure that it complied with certain statutory entitlements. The Commission was satisfied that the agreement provided adequate protections for employees in terms of minimum wages, leave entitlements, and other employment conditions. The Commission approved the agreement subject to the minor amendments.

In approving the agreement, the Commission made an order that the Willis Bros Installations (Qld) Pty Ltd and CFMEU union collective agreement 2011-2015 be registered under the Fair Work Act 2009, subject to the minor amendments made by the Commission. The Commission also ordered that the agreement be published on the Fair Work Ombudsman's website to ensure transparency and accountability.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established