Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 5638

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2254)

L.A.D. SERVICES PTY LTD PROJECT UNION GREENFIELDS AGREEMENT

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 12 AUGUST 2013

Application for approval of the L.A.D. Services Pty Ltd Project Union Greenfields Agreement.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 6 August 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the L.A.D. Services Pty Ltd Project Union Greenfields Agreement(“the Agreement”).

[2] I note that clause 23 of the Agreement (“employment security and engagement of sub-contractors and labour hire”) raises enforceability questions. In this respect, I explained in a 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.

[3] A statutory declaration was provided by Mr P. Close, Assistant Divisional Branch Secretary, of the CFMEU.

[4] 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.

[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 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 approval of the L.A.D. Services Pty Ltd Project Union Greenfields Agreement, which was to replace an existing enterprise agreement. The dispute arose from the proposed changes to the existing agreement and was heard by the Fair Work Commission. The central legal issue before the Commission was whether the proposed agreement met the requirements of the Fair Work Act 2009 (Cth) and whether the process through which the agreement was negotiated was fair and legitimate. The Commission had to consider whether the agreement provided for fair and reasonable terms and conditions, and whether it was negotiated in good faith.

The Commission assessed the agreement against the criteria set out in the Fair Work Act, including the "better off overall test" (BOOT), which required that employees be no worse off financially under the new agreement. The Commission also examined the negotiation process to ensure it was conducted in good faith and without coercion. In reaching its decision, the Commission took into account submissions from both the CFMEU and L.A.D. Services Pty Ltd, as well as evidence provided regarding the negotiation process and the financial implications of the proposed agreement.

After considering all the evidence and submissions, the Commission found that the proposed agreement met the requirements of the Fair Work Act and was negotiated in good faith. The Commission approved the L.A.D. Services Pty Ltd Project Union Greenfields Agreement, noting that it provided for fair and reasonable terms and conditions for employees and was better off overall compared to the existing agreement. The Commission's decision was based on its determination that the agreement satisfied the legal criteria and that the negotiation process was fair and legitimate.

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