Construction, Forestry, Mining and Energy Union

[2013] FWCA 7584

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9582)

CALATAFIMI ENTERPRISES PTY LTD T/A LATINA CERAMICA 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 Calatafimi Enterprises Pty Ltd T/A Latina Ceramica 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 25 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Calatafimi Enterprises Pty Ltd T/A Latina Ceramica 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 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 P. Close, Assistant 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

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) and Calatafimi Enterprises Pty Ltd T/A Latina Ceramica were the parties involved in the dispute, which was heard by the Fair Work Commission (FWC). The matter concerned an application by the CFMEU for the approval of a collective agreement between the union and the employer for the period of 2011 to 2015. The legal issues before the FWC encompassed whether the proposed agreement complied with the relevant statutory provisions and whether it adhered to the principles of good faith bargaining and good faith conduct.

The FWC carefully examined the terms and conditions outlined in the collective agreement to determine if they were consistent with the requirements of the Fair Work Act 2009. The court also assessed whether the agreement embodied the principles of good faith bargaining, which includes the obligation to negotiate in good faith, the duty to reach an agreement if possible, and the requirement to avoid unnecessary delays. Additionally, the FWC considered whether the agreement demonstrated good faith conduct, including the absence of bad faith tactics, such as coercion, duress, or unreasonable delay.

In its decision, the FWC found that the collective agreement was in compliance with the statutory provisions and adhered to the principles of good faith bargaining and conduct. The FWC concluded that the agreement was fair and reasonable, taking into account the interests of both the employees and the employer. The FWC approved the collective agreement, emphasising the importance of maintaining a harmonious and cooperative relationship between the parties. The approval of the agreement facilitated a stable and predictable working environment for the employees and provided a clear framework for the employer to manage its workforce.

The final orders of the FWC included the approval of the Calatafimi Enterprises Pty Ltd T/A Latina Ceramica and CFMEU Union Collective Agreement 2011-2015, effective from the date of the decision. The FWC also directed the parties to comply with the terms and conditions of the approved agreement and to continue to engage in good faith bargaining and conduct in the future. This decision underscores the importance of adhering to the principles of good faith in the negotiation and approval of collective agreements, promoting a cooperative and productive industrial relations environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established