Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 5030

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2058)

ASPECT QLD 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 Aspect 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 22 July 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Aspect 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] 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] Further, for the 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 matter before the Fair Work Commission involved an application for the approval of a collective agreement between Aspect Qld Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the period 2011-2015. The primary dispute centred around the specific terms and conditions outlined in the agreement and their compliance with relevant industrial legislation and standards. The case was heard in the Fair Work Commission, which has jurisdiction over employment and workplace relations matters in Australia.

The legal issues that the Commission had to resolve included whether the collective agreement's terms met the criteria for approval under the Fair Work Act 2009, particularly in relation to ensuring the agreement did not undermine the provisions for minimum wages and conditions. The Commission also needed to assess if the agreement provided fair and appropriate terms for both the employer and the employees, ensuring that it did not include any discriminatory provisions or terms that were otherwise unlawful.

The Commission examined the agreement clause by clause, considering its alignment with the Fair Work Act and the Fair Work Regulations. It focused on whether the agreement provided for a fair balance between the rights and obligations of the parties, and whether it adhered to the principles of good faith bargaining. After a thorough review, the Commission found that the agreement largely complied with the required standards, though it did identify and require some modifications to ensure full compliance with the Act. The Commission ultimately approved the collective agreement with the specified amendments.

The final orders of the Commission included the approval of the collective agreement, subject to the modifications identified during the review. These modifications were necessary to ensure the agreement fully complied with the Fair Work Act and the Fair Work Regulations, and to remove any provisions that could potentially undermine the minimum standards set by the legislation. The Commission's decision thus provided clarity on the terms that were permissible and enforceable, while also safeguarding the interests of both the employer and the employees.

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