Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 7125

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2811)

MAKKON CIVIL 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 Makkon Civil 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 Makkon Civil 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 Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of a collective agreement with Makkon Civil Pty Ltd, spanning from 2011 to 2015. The application was lodged with the Fair Work Commission (FWC) and was contested by Makkon Civil Pty Ltd. The primary dispute centred on the terms and conditions of the proposed agreement, specifically whether the terms aligned with the principles of the Fair Work Act 2009.

The legal issues before the FWC encompassed whether the collective agreement adhered to the statutory requirements for approval and if it was in the best interests of the employees. Additionally, the court had to consider whether the agreement was fairly negotiated and if it complied with the procedural fairness principles. The FWC evaluated the content of the agreement against the backdrop of existing employment standards and collective bargaining principles.

The FWC determined that the collective agreement did meet the statutory criteria for approval. It found that the agreement was fairly negotiated and complied with procedural fairness. The terms of the agreement were deemed to be in the best interests of the employees, aligning with the broader principles of fairness and equity under the Fair Work Act. The FWC's decision was based on the comprehensive review of the agreement's provisions and the evidence presented by both parties. Consequently, the FWC approved the collective agreement, finding it to be compliant with the legislative framework and in the interests of all stakeholders involved.

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