Construction, Forestry, Mining and Energy Union

[2013] FWCA 4428

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/1706)

NYANDA CIVIL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

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

Application for approval of the Nyanda Civil 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 28 June 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Nyanda Civil Pty Ltd and CFMEU union collective agreement 2011-2015 (“the Agreement”).

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

Clause 2 seeks to confirm only the operation of the Act in relation to expired agreements. In correspondence of 5 March 2013, related to the occurrence of this clause in CFMEU template agreements generally (which are made with the Construction and General Division, Queensland Construction Workers Divisional Branch), the CFMEU clarified, and I accept, that nothing further is intended by the clause. I make further comment on this clause below.

Clause 3 notes that the Agreement is to apply to employees of the company engaged in construction work and/or for whom the Agreement provides classifications and rates of pay. In correspondence of 5 March 2013, related to the occurrence of this clause in CFMEU template agreements generally (which are made with the Construction and General Division, Queensland Construction Workers Divisional Branch), the CFMEU clarified, and I accept, that this “and/or” should be read as “and”.

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.”

[3] 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. This is particularly so given the clarification provided by the CFMEU noted above.

[4] 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.

[5] 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.

[6] 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 court involved an application for approval of a collective agreement between Nyanda Civil Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the period 2011-2015. The application was brought before the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The dispute centred around whether the proposed agreement complied with the statutory requirements for approval and whether it adhered to the principles of good faith bargaining and industrial fairness.

The court was required to determine whether the collective agreement met the criteria for approval as stipulated in the Fair Work Act. Specifically, the court needed to assess if the agreement was made in good faith, if it was fairly negotiated, and if it contained terms and conditions that were in line with the law and industrial standards. The court also had to examine if the agreement included provisions for dispute resolution and whether it contained any terms that could be considered detrimental to the employees' rights or welfare.

Upon examining the evidence and submissions, the court found that the collective agreement was made in good faith and was the product of fair and genuine negotiations between the parties. The court noted that the agreement contained provisions for dispute resolution and did not include any terms that would be considered unfair or detrimental to the employees. The court also observed that the agreement complied with the relevant provisions of the Fair Work Act and did not contravene any industrial standards. Consequently, the court approved the collective agreement, recognising its compliance with the statutory requirements and its adherence to the principles of good faith bargaining and industrial fairness.

The final order of the court was to approve the collective agreement between Nyanda Civil Pty Ltd and the CFMEU for the period 2011-2015. The court's decision provided certainty and finality to the parties and ensured that the agreement would be enforceable under the Fair Work Act. The approval of the agreement also facilitated the resolution of any potential industrial disputes that may arise during the term of the agreement, promoting industrial harmony and stability.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established