Construction, Forestry, Mining and Energy Union

[2013] FWCA 5783

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/8055)

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

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 15 AUGUST 2013

Application for approval of the Statewide Steelfixing (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 9 August 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Statewide Steelfixing (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] For the avoidance of doubt, I note the following.

Clauses 33.4 and 33.7 must be read in conjunction with Clause 41 of the Agreement. The relevant extract of Clause 41 is as follows:

“The right provided for in subclause 33.4 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 33.7 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.”

[4] 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.

[5] 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.

[6] 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 matter before the Fair Work Commission was an application for approval of a collective agreement between the Statewide Steelfixing (QLD) Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The application was made under section 235 of the Fair Work Act 2009, which allows the Commission to approve a collective agreement if it is satisfied that the agreement complies with certain criteria, including that it does not discriminate against employees and that it has been made in good faith. The CFMEU sought approval of the agreement on behalf of its members who were employed by Statewide Steelfixing.

The legal issues before the Commission were whether the agreement was made in good faith and whether it was free from prohibited content, such as discrimination or unjustifiable hardship. The Commission had to consider the bargaining positions of the parties, the negotiation process, and the terms of the agreement itself. The Commission also had to consider whether the agreement was consistent with the principles of the Fair Work Act, including the protection of employees' rights and the promotion of economic and social prosperity.

After considering the evidence and submissions from both parties, the Commission found that the agreement had been made in good faith and was free from prohibited content. The Commission noted that the parties had engaged in a genuine and meaningful negotiation process, and that the terms of the agreement reflected the bargaining positions of both parties. The Commission also found that the agreement was consistent with the principles of the Fair Work Act, and did not contain any terms that would cause unjustifiable hardship to employees or employers. The Commission approved the agreement, subject to certain minor modifications to ensure compliance with the Act.

The Commission made orders approving the Statewide Steelfixing (QLD) Pty Ltd and CFMEU Union Collective Agreement 2011 - 2015, subject to the modifications outlined in the decision. The orders were effective from the date of the decision and applied to all employees covered by the agreement. The decision provides guidance to employers and unions on the requirements for approving a collective agreement under the Fair Work Act, and reinforces the importance of good faith bargaining and compliance with the Act in the negotiation and approval process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established