Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 5538

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2174)

P & H JUNNI FAMILY TRUST T/A DORAVILLE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 8 AUGUST 2013

Application for approval of the P & H Junni Family Trust T/A Doraville 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 1 August 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the P & H Junni Family Trust T/A Doraville 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] In relation to clause 41 of the Agreement (“visa compliance”) which refers to apparent obligations upon the employer to do certain things where “temporary foreign labour” is engaged, I note that a recent decision of the Fair Work Commission 1 has found that a clause in such terms as clause 41 of the Agreement is not permitted content (again, for the purposes of s.172 of the Act), and consequently, cannot impose the obligations upon the employer it seeks to impose.

[5] 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.”

[6] 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.

[7] 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.

[8] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

1 Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Mining and Energy Union (CFMEU) and the P & H Junni Family Trust T/A Doraville Pty Ltd, which sought approval for their Union Collective Agreement 2011-2015. The application was heard in the Fair Work Commission (FWC), an Australian tribunal with jurisdiction over employment matters.

The primary legal issue was whether the proposed agreement complied with the requirements of the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement was a "registered agreement" under the Act, which requires it to meet certain criteria, including being free from prohibited content and having been independently assessed by the FWC. Another issue was whether the agreement's terms were fair and reasonable, particularly in relation to the provisions concerning casual employees.

In its decision, the FWC found that the agreement was largely compliant with the Act. It noted that the agreement contained no prohibited content and had been independently assessed as meeting the requirements for a registered agreement. The FWC also considered the fairness and reasonableness of the agreement's terms, finding that they were not unduly harsh, oppressive, or discriminatory. The FWC approved the agreement, subject to certain minor modifications to address technical issues identified during the assessment process.

The FWC's final order was that the Union Collective Agreement 2011-2015 between the CFMEU and the P & H Junni Family Trust T/A Doraville Pty Ltd be approved, with the aforementioned modifications. The agreement came into effect on the date of the FWC's decision, providing a framework for the employment relationship between the parties for the specified period.

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