Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 7301

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2891)

SELDOM EARTHMOVING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 23 SEPTEMBER 2013

Application for approval of the Seldom Earthmoving 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 17 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Seldom Earthmoving 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 36.3 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 41 of the Agreement. The relevant extract of Clause 41 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 case involved an application for the approval of a collective agreement between Seldom Earthmoving Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the period 2011 to 2015. The application was heard by the Fair Work Commission (FWC), Australia's independent statutory body responsible for resolving workplace disputes and promoting fair work practices.

The legal issues before the FWC were primarily centered around the fairness and appropriateness of the terms and conditions outlined in the proposed collective agreement. The FWC had to consider whether the agreement was in line with the principles of the Fair Work Act 2009, ensuring it did not undermine the system of enterprise bargaining and maintained a balance between the rights of employers and employees. Key considerations included the agreement's compliance with the "better off overall test" (BOOT), which requires that employees should not be worse off financially under the new agreement compared to their existing terms.

The FWC determined that the proposed agreement met the necessary criteria for approval. It found that the agreement was fair and appropriate, considering the specific circumstances of the parties involved. The commission noted that the agreement provided for reasonable terms and conditions, while also accommodating the interests of both employers and employees. The FWC emphasised that the agreement did not contravene the BOOT and, therefore, was consistent with the overarching objectives of the Fair Work Act.

Consequently, the FWC approved the Seldom Earthmoving Pty Ltd and CFMEU union collective agreement for the period 2011 to 2015. This decision underscored the importance of maintaining a balanced and fair approach to enterprise bargaining, ensuring that agreements are made in good faith and with consideration of the broader implications for the workforce and industry.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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