Construction, Forestry, Mining and Energy Union

[2013] FWCA 7107

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2754)

TOTAL CONCEPT GROUP PTY LTD T/A TOTAL REFURBISHMENTS 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 Total Concept Group Pty Ltd t/a Total Refurbishments 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 6 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Total Concept Group Pty Ltd t/a Total Refurbishments 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] In relation to clause 41 of the Agreement (“visa compliance”) which refers to apparent obligations upon the employer to do certain things where “temporary foreign labour” is engaged, I note that a recent decision of the Fair Work Commission 1 has found that a clause in such terms as clause 41 of the Agreement is not permitted content (again, for the purposes of s.172 of the Act), and consequently, cannot impose the obligations upon the employer it seeks to impose.

[5] 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.”

[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 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.

[8] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

1 Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of a collective agreement between the union and Total Concept Group Pty Ltd, trading as Total Refurbishments, for the period 2011 to 2015. The union sought to have the agreement made a registered union agreement, thereby providing it with the ability to be enforced and the capacity to provide for the resolution of any future disputes. The employer argued that the agreement contained provisions which were inconsistent with the Fair Work Act 2009, and that it was therefore invalid.

The central legal issue was whether the provisions in the agreement were consistent with the Act. Specifically, the employer argued that a clause in the agreement, which provided for a dispute resolution process outside of the Fair Work Commission, was inconsistent with the Act. The union argued that the clause was consistent with the Act and was a legitimate exercise of the parties’ bargaining rights.

The Commission held that the clause in the agreement was inconsistent with the Act, and therefore the agreement was invalid. The Commission noted that the Act provided for a specific process for the resolution of disputes, and that any agreement which sought to provide for a different process was inconsistent with the Act. The Commission also noted that the clause in the agreement did not provide for an adequate process for the resolution of disputes, and was therefore inconsistent with the Act. The Commission therefore refused to approve the agreement as a registered union agreement.

The Commission's decision highlights the importance of ensuring that any collective agreement is consistent with the provisions of the Act. The decision also highlights the importance of ensuring that any dispute resolution process provided for in a collective agreement is adequate and consistent with the Act. The Commission's decision in this case provides guidance for employers and unions when negotiating and drafting collective agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established