Construction, Forestry, Mining and Energy Union

[2013] FWCA 6199

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2301)

A1 WATERPROOFING & APPLICATIONS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 27 AUGUST 2013

Application for approval of the A1 Waterproofing & Applications 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 9 August 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the A1 Waterproofing & Applications 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 between A1 Waterproofing & Applications Pty Ltd and the CFMEU. The dispute was heard by the Fair Work Commission (FWC). The primary legal issue the FWC had to address was whether the collective agreement met the requirements of section 228 of the Fair Work Act 2009. Specifically, the FWC needed to determine if the agreement was in the best interests of the employees and if it adhered to the provisions of the Act.

The FWC examined whether the agreement appropriately balanced the interests of both the employer and the employees. The Commission also considered if the terms of the agreement were fair and reasonable and if they complied with the provisions of the Fair Work Act. The CFMEU argued that the agreement was beneficial for the employees, while A1 Waterproofing & Applications Pty Ltd contended that certain terms were overly restrictive.

After reviewing the submissions from both parties and considering the evidence presented, the FWC concluded that the collective agreement was fair and reasonable. The FWC found that the agreement was in the best interests of the employees and that it complied with the relevant provisions of the Fair Work Act. The Commission approved the collective agreement between A1 Waterproofing & Applications Pty Ltd and the CFMEU.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established