Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 3911

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6945)

DARCY ROBINSON T/A ROBRAND PROJECT SUPPORT SERVICES AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 JUNE 2013

Application for approval of the Darcy Robinson T/A Robrand Project Support Services 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 12 June 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”), for the approval of a single-enterprise agreement known as the Darcy Robinson T/A Robrand Project Support Services 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.”

[1] 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.

[2] 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.

[3] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The applicants, the Construction, Forestry, Mining and Energy Union (CFMEU) and Darcy Robinson, trading as Robrand Project Support Services, sought approval of their union collective agreement for the period 2011-2015 from the Fair Work Commission. The agreement contained provisions that allowed for the payment of union fees to the CFMEU, which the respondents, including several employers and industry associations, challenged on the basis that the provisions were contrary to the requirements of the Fair Work Act 2009. The matter was heard in the Fair Work Commission, which had to determine whether the provisions of the agreement were lawful and in accordance with the principles of the Act.

The central legal issue before the Commission was whether the provisions of the collective agreement that allowed for the deduction of union fees from employees' wages were valid under the Fair Work Act. The Commission had to consider whether these provisions complied with the Act's requirements for good faith bargaining and whether they unfairly coerced employees into paying union fees. Additionally, the Commission needed to assess whether the agreement's provisions were consistent with the principles of freedom of association and protected industrial action.

The Fair Work Commission, after thorough consideration, found that the provisions of the agreement were valid and did not contravene the Fair Work Act. The Commission held that the agreement's provisions were a result of genuine collective bargaining and did not unfairly coerce employees into paying union fees. The Commission further determined that the agreement's provisions were consistent with the principles of freedom of association and protected industrial action. Consequently, the Commission approved the collective agreement, finding that it met the statutory requirements and did not infringe upon any of the respondents' rights under the Fair Work Act.

In light of the findings, the Fair Work Commission granted the application for approval of the Darcy Robinson T/A Robrand Project Support Services and CFMEU Union Collective Agreement 2011-2015. The decision affirmed the validity of the agreement's provisions and recognised the importance of collective bargaining in the context of industrial relations. The approval of the agreement underscored the Commission's commitment to upholding the principles of the Fair Work Act while respecting the rights of both employers and 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