Construction, Forestry, Mining and Energy Union

[2013] FWCA 6612

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2586)

SUPERFORM (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 5 SEPTEMBER 2013

Application for approval of the Superform (Qld) 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 28 August 2013 by Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Superform (Qld) 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] A statutory declaration was provided by Mr P. Close, Assistant Divisional Branch Secretary, of the CFMEU.

[6] 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.

[7] 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.

[8] 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of a collective agreement with Superform (Qld) Pty Ltd. The union sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The primary dispute centred around the terms and conditions of the collective agreement and whether it met the statutory requirements for registration.

The legal issues before the commission were whether the agreement was genuinely a product of bargaining between the parties and if it adhered to the provisions of the Fair Work Act. The commission needed to determine if the agreement was made in good faith and whether it contained the necessary minimum terms and conditions as stipulated by the Act. Furthermore, the commission had to ensure the agreement did not adversely affect employees or employers in a way that was inconsistent with the Act.

The commission found that the agreement was genuinely the product of bargaining between the parties and contained all the minimum terms and conditions required by the Fair Work Act. The commission noted that the union and the employer had engaged in genuine negotiations, and the terms of the agreement reflected the outcomes of those negotiations. The commission also determined that the agreement did not adversely affect employees or employers in a manner inconsistent with the Act. Therefore, the commission approved the collective agreement as a registered agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established