Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 5520

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/2021)

TRUSTEE FOR TAF GROUP CONSTRUCTION (ONE) T/A TAF GROUP CONSTRUCTION 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 Trustee for Taf Group Construction (One) t/a Taf Group Construction 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 18 July 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Trustee for Taf Group Construction (One) t/a Taf Group Construction 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] 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.”

[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 by the Trustee for Taf Group Construction (One) t/as Taf Group Construction to have a union collective agreement approved. The Construction, Forestry, Mining and Energy Union (CFMEU) was the respondent. The central issue was whether the agreement could be certified as a "modern award" under the Fair Work Act 2009, given that the employer had ceased trading and was now in liquidation. The application raised questions about the application of the legislation to agreements in the context of a company's insolvency and the implications for the employees and the union.

The Commission considered the scope of the statutory provisions and whether the nature of the agreement warranted certification despite the employer's insolvency. It examined the objectives of the Fair Work Act, particularly those related to protecting employees' rights and ensuring fair bargaining processes. The court also took into account the legal status of the employer and the impact on the workforce. Ultimately, the Commission concluded that the agreement could indeed be approved as a modern award, despite the employer's insolvency, as long as it met the requirements of the Act and protected the interests of the employees.

The Commission's reasoning hinged on the provisions of the Fair Work Act and its overarching objective of ensuring fair and just workplace outcomes. It found that the agreement provided adequate protections for the employees, and therefore, certification was warranted. The court also considered the practical implications of denying certification, which could leave the employees without a protective agreement and potentially disadvantaged in their bargaining position. The outcome reflects a balanced approach, recognising the importance of maintaining fair industrial relations processes even in the context of an insolvent employer.

The final orders of the Commission were that the Trustee for Taf Group Construction (One) t/as Taf Group Construction's application for approval of the union collective agreement as a modern award was approved, effective from the date of the decision. This decision ensures that the employees will continue to be covered by the agreement, providing them with protections and rights under the terms set out in the agreement.

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