Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 5020

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7647)

TOP DECK REINFORCING AUSTRALIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 JULY 2013

Application for approval of the Top Deck Reinforcing Australia 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 19 July 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Top Deck Reinforcing Australia 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). However, as noted in that decision, I do not consider this to be a reason for not approving the Agreement.

[3] For the avoidance of doubt, I note the following.

Clauses 33.4 and 33.7 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 33.4 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 33.7 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.”

[4] A statutory declaration was provided by Mr D. Hanna, Divisional Branch Secretary, of the CFMEU.

[5] 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.

[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 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 brought an application for approval of a collective agreement, the Top Deck Reinforcing Australia Pty Ltd and CFMEU Union Collective Agreement 2011-2015, before the Fair Work Commission. The respondent, Top Deck Reinforcing Australia Pty Ltd, did not contest the application, but raised concerns regarding the fairness of the agreement. The case involved the interpretation and application of the Fair Work Act 2009, specifically the provisions concerning the approval of enterprise agreements.

The primary legal issues before the Commission were whether the collective agreement met the criteria for approval under the Fair Work Act and whether it was fair and reasonable in terms of its provisions. The respondent's primary concern was that the agreement might have an adverse impact on the business's ability to operate efficiently. The Commission had to balance the rights of the parties under the Act and ensure that the agreement did not unfairly disadvantage the employer or the employees.

In its decision, the Commission examined the collective agreement's terms and found that it complied with the statutory requirements of the Fair Work Act. The agreement was deemed to be fair and reasonable as it provided for adequate consultation and negotiation processes, covered essential terms and conditions of employment, and did not contain any provisions that were likely to have an unreasonable adverse effect on the business. The Commission emphasised the importance of the agreement in providing certainty and stability to both parties and ensuring a harmonious workplace. Consequently, the application for approval was granted.

The Fair Work Commission approved the Top Deck Reinforcing Australia Pty Ltd and CFMEU Union Collective Agreement 2011-2015, effective from the date of the decision. The respondent's concerns about the agreement's potential impact on the business were alleviated by the Commission's determination that the agreement was fair and reasonable. The decision provides clarity for both parties and reinforces the importance of good faith bargaining and consultation in the collective bargaining process under the Fair Work Act.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established