Construction, Forestry, Mining and Energy Union

[2013] FWCA 5501

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/1978)

MAINLAND CIVIL QUEENSLAND PTY LTD T/A MAINLAND CIVIL 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 Mainland Civil Queensland Pty Ltd t/a Mainland Civil 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 16 July 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Mainland Civil Queensland Pty Ltd t/a Mainland Civil 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 36.3 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 41 of the Agreement. The relevant extract of Clause 41 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 sought approval for the collective agreement between Mainland Civil Queensland Pty Ltd, trading as Mainland Civil, and the union for the period of 2011 to 2015. The application for approval was brought before the Fair Work Commission. The primary legal issue before the Commission was whether the collective agreement met the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was genuinely a collective agreement and whether it complied with the provisions of the Act, including its alignment with the National Employment Standards and the Fair Work Ombudsman's guidelines.

The Fair Work Commission examined the collective agreement clause by clause to ascertain its compliance with the Act. It considered whether the agreement was genuinely negotiated between the employer and the union, and if the union had the requisite authority to negotiate on behalf of its members. The Commission also evaluated the agreement's adherence to the National Employment Standards, including provisions on maximum weekly hours, overtime, and shift arrangements. Additionally, the Commission assessed whether the agreement contained any provisions that were contrary to public policy or contrary to the objects of the Act. After thorough examination, the Commission found that the agreement was genuinely a collective agreement and complied with the requirements of the Act.

The Fair Work Commission approved the collective agreement between Mainland Civil Queensland Pty Ltd and the Construction, Forestry, Mining and Energy Union for the period of 2011 to 2015. The Commission's decision was based on its finding that the agreement was genuinely negotiated, contained provisions that aligned with the National Employment Standards, and did not contravene any public policy or the objects of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established