Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 6851

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2705)

LEMONT PROPERTIES PTY LTD ATF THE ROMBERG FAMILY TRUST T/A I & H CONTRACT FIXING AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 11 SEPTEMBER 2013

Application for approval of the Lemont Properties Pty Ltd ATF the ROMBERG FAMILY TRUST T/A I & H Contract Fixing 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 4 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Lemont Properties Pty Ltd ATF the ROMBERG FAMILY TRUST T/A I & H Contract Fixing 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

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CaseChat Overview and Summary

The case before the court involved the Construction, Forestry, Mining and Energy Union and Lemont Properties Pty Ltd, acting as the trustee for the Romberg Family Trust, trading as I & H Contract Fixing. The union sought approval of a collective agreement for the period 2011-2015. The nature of the dispute centred on whether the agreement met the legal standards required for approval under the relevant industrial legislation. The Fair Work Commission heard the matter, tasked with determining whether the agreement complied with the provisions of the Fair Work Act 2009.

The primary legal issues before the Commission were whether the collective agreement was made free of any improper influence, coercion, or duress, and whether it contained terms that were not contrary to public policy or unjust. The Commission also needed to consider whether the agreement provided for a fair and reasonable process for the resolution of disputes between the employer and employees. Furthermore, the court had to determine if the agreement contained terms that were necessary to protect the health, safety, and welfare of employees, and whether it balanced the interests of both parties appropriately.

In its reasoning, the Commission found that the collective agreement was generally fair and reasonable. It concluded that the agreement was made without any improper influence or duress and did not contain terms that were against public policy or unjust. The Commission was satisfied that the agreement provided adequate mechanisms for the resolution of disputes and included necessary terms for the protection of employee health, safety, and welfare. The agreement was thus deemed to balance the interests of both the employer and the employees in a fair manner. Consequently, the Commission approved the collective agreement.

The final orders of the Commission were that the union and Lemont Properties Pty Ltd ATF the Romberg Family Trust T/A I & H Contract Fixing 2011-2015 collective agreement be approved. This approval meant that the terms of the agreement would be legally binding on the parties and enforceable under the Fair Work Act 2009.

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