Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 7124

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9349)

QR CONTRACTING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 SEPTEMBER 2013

Application for approval of the QR Contracting 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 11 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the QR Contracting 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 case before the court involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of a collective agreement between the union and QR Contracting Pty Ltd for the period 2011 to 2015. The application was brought under the Fair Work Act 2009, specifically seeking the Fair Work Commission's endorsement of the agreement. The legal issues before the court centred on whether the proposed collective agreement met the statutory criteria for approval, including the assessment of whether it provided for fair and reasonable terms and conditions of employment, and whether it complied with the relevant provisions of the Fair Work Act.

The court carefully examined the proposed agreement to determine if it met the statutory criteria for approval. It assessed whether the agreement provided for fair and reasonable terms and conditions of employment, taking into account the principles of enterprise bargaining and the need for the agreement to be in the best interests of the employees. Additionally, the court considered whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. In its analysis, the court considered submissions from both the CFMEU and QR Contracting Pty Ltd, and reviewed the terms and conditions outlined in the proposed agreement.

After thorough consideration, the court found that the proposed collective agreement did not meet the statutory criteria for approval. The court identified several issues with the agreement, including certain terms that it considered to be unreasonable or unfair to employees, and procedural flaws in the bargaining process. Consequently, the court dismissed the application for approval of the agreement. The court's decision was based on the conclusion that the proposed agreement did not provide for fair and reasonable terms and conditions of employment, and did not comply with the requirements of the Fair Work Act. As a result, the agreement was not endorsed by the Fair Work Commission.

In conclusion, the court dismissed the application for approval of the QR Contracting Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The court found that the proposed agreement did not meet the statutory criteria for approval, and it did not provide for fair and reasonable terms and conditions of employment. The decision underscores the importance of ensuring that collective agreements comply with the relevant provisions of the Fair Work Act and provide for fair outcomes for employees.

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