Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 6399

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2495)

GABBA WATERPROOFING PTY LTD AND CFMEU UNION GREENFIELDS AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 SEPTEMBER 2013

Application for approval of the Gabba Waterproofing Pty Ltd and CFMEU Union Greenfields Agreement 2011-2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 23 August 2013 by Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Gabba Waterproofing Pty Ltd and CFMEU Union Greenfields 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 matter of Construction, Forestry, Mining and Energy Union, the applicant sought approval of the Gabba Waterproofing Pty Ltd and CFMEU Union Greenfields Agreement 2011-2015. The respondent, Gabba Waterproofing Pty Ltd, contested the application, leading to a legal dispute that was resolved in the Fair Work Commission. The central issue before the court was whether the agreement met the statutory requirements for approval and whether it adhered to the principles of good faith bargaining.

The court examined the provisions of the Fair Work Act 2009, focusing on the criteria for approving an enterprise agreement. It considered whether the agreement had been negotiated in good faith, whether it complied with the procedural requirements, and if it provided for a fair and reasonable outcome for all parties. The court also assessed whether the agreement contained terms that were consistent with the principles of enterprise bargaining and the overarching objectives of the Act. Ultimately, the court found that the agreement had been negotiated in good faith and met all the statutory requirements for approval.

The Fair Work Commission approved the application, finding that the agreement was fair and reasonable, and that it complied with the relevant provisions of the Act. The court emphasised the importance of good faith bargaining and the need for enterprise agreements to reflect a balance of interests between employers and employees. The decision underscored the Commission's role in ensuring that enterprise agreements promote fair and efficient industrial relations. The orders made by the Commission included the approval of the agreement, which would now be binding on the parties involved.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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