Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 7440

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9478)

PLACE CORP (AUSTRALIA) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 SEPTEMBER 2013

Application for approval of the Place Corp (Australia) 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 19 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Place Corp (Australia) 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] For the 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.”

[4] A statutory declaration was provided by Mr D. Hanna, Divisional Branch Secretary, of the CFMEU.

[5] 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.

[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 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 Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for a collective agreement with Place Corp (Australia) Pty Ltd. The application was brought before the Fair Work Commission (FWC) under the Fair Work Act 2009. The dispute centred around the terms of the proposed collective agreement, which aimed to regulate the employment conditions between the CFMEU and Place Corp for the period 2011-2015. The primary legal issues before the Commission were whether the collective agreement complied with the statutory requirements and whether it met the standards of procedural fairness and substantive fairness.

The FWC examined whether the agreement was made in good faith, whether it provided for fair and reasonable terms and conditions, and whether it was in the best interests of the employees. The Commission also considered whether the agreement met the criteria for being a "good faith" agreement as defined by the Fair Work Act. The CFMEU argued that the agreement was necessary to address specific issues in the workplace and was in the best interest of the employees. Conversely, Place Corp contended that the agreement contained terms that were not fair and reasonable, and that it did not meet the statutory standards.

After considering the evidence and arguments presented by both parties, the FWC concluded that the collective agreement did not meet the standards of procedural fairness as it failed to adequately consider the interests of the employees. The Commission found that Place Corp had not provided sufficient evidence to demonstrate that the agreement was in the best interests of the employees, and that some of the terms were not fair and reasonable. The FWC ultimately decided not to approve the collective agreement. The decision was based on the finding that the agreement did not comply with the statutory requirements and did not meet the standards of fairness necessary for approval under the Fair Work Act.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established