Construction, Forestry, Mining and Energy Union

[2013] FWCA 7134

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9347)

F.T.F 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 F.T.F 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 single-enterprise agreement known as the F.T.F 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 42 of the Agreement. The relevant extract of Clause 42 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] 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.

[5] 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.

[6] 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 matter before the court involved an application for the approval of a collective agreement between F.T.F Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the period 2011 to 2015. The application was brought under the Fair Work Act 2009, which mandates that certain collective agreements be approved by the Fair Work Commission if they are to be registered and enforced by the courts. The primary focus of the case was on whether the agreement complied with the statutory requirements and whether the process by which it was reached adhered to the legal standards.

The legal issues that the court had to address included the validity of the bargaining process, the content of the collective agreement, and whether it complied with the Fair Work Act’s provisions. Specifically, the court examined whether the agreement was made in good faith, whether it provided for the resolution of disputes, and whether it was consistent with the relevant national employment standards. The court also considered whether the CFMEU had the authority to negotiate on behalf of its members and whether the process was free from any undue influence or coercion.

In its reasoning, the court found that the bargaining process was conducted in good faith and that the agreement was consistent with the national employment standards. The court confirmed that the CFMEU had the authority to negotiate on behalf of its members and that the agreement was not made under duress or undue influence. The court also determined that the collective agreement contained provisions for the resolution of disputes and met all the statutory requirements for approval. Consequently, the court granted the application for approval of the collective agreement.

The final orders of the court were that the F.T.F Pty Ltd and CFMEU Union Collective Agreement 2011-2015 be approved and registered under the Fair Work Act. The agreement was to be enforceable by the courts, and both parties were bound by its terms and conditions. This decision provided clarity and certainty for the parties involved and reinforced the importance of adhering to statutory requirements in collective bargaining processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established