Construction, Forestry, Mining and Energy Union

[2013] FWCA 7169

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2865)

REGENCY BALUSTRADE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 20 SEPTEMBER 2013

Application for approval of the Regency Balustrade 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 16 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Regency Balustrade 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 applicants, the Construction, Forestry, Mining and Energy Union (CFMEU) and Regency Balustrade Pty Ltd, sought approval of their collective agreement for the period 2011 to 2015. The application was heard by the Fair Work Commission, which has jurisdiction to approve, reject, or modify collective agreements under the Fair Work Act 2009. The legal issues before the Commission were whether the agreement complied with the relevant legislative provisions and whether it was in the best interests of the employees and the employer.

The Commission began by examining the terms of the collective agreement against the legislative requirements. It assessed whether the agreement contained all the mandatory provisions as outlined in the Fair Work Act and Regulations. The Commission also considered whether the agreement promoted harmonious, productive, and cooperative workplace relations. The Commission gave weight to the parties' submissions and evidence, including the bargaining history and the views of the employees and employer. The Commission concluded that the agreement was compliant with the legislation and promoted the intended objectives of cooperative workplace relations.

The Commission found that the collective agreement was in the best interests of both the employees and the employer. The agreement provided for fair and reasonable terms and conditions of employment, including provisions for wages, hours of work, and other employment-related matters. The Commission noted that the agreement was the result of good faith negotiations between the parties and reflected the specific circumstances of the industry and the workplace. The Commission approved the collective agreement, subject to certain modifications to address minor technical issues.

The Fair Work Commission approved the collective agreement between the Construction, Forestry, Mining and Energy Union and Regency Balustrade Pty Ltd, subject to modifications. The Commission found that the agreement was compliant with the Fair Work Act and Regulations and promoted harmonious, productive, and cooperative workplace relations. The Commission also concluded that the agreement was in the best interests of both the employees and the employer. The modifications were made to address minor technical issues, and the agreement was approved as modified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established