Construction, Forestry, Mining and Energy Union

[2013] FWCA 3477

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/296)

COCKRAM CONSTRUCTION LIMITED AND CFMEU UNION GREENFIELDS AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 31 MAY 2013

Application for approval of the Cockram Construction Limited and CFMEU union Greenfields agreement 2011-2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 12 February 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Cockram Construction Limited and CFMEU union Greenfields agreement 2011-2015(“the Agreement”). This agreement was amended consistent with my decision in [2013] FWC 1901 prior to consideration for approval.

[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.

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 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.”

[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] In relation to clause 41 of the Agreement (“visa compliance”) which refers to apparent obligations upon the employer to do certain things where “temporary foreign labour” is engaged, I note that a recent decision of the Fair Work Commission 1 has found that a clause in such terms as clause 41 of the Agreement is not permitted content, and consequently, cannot impose the obligations upon the employer it seeks to impose.

[5] A statutory declaration was provided by Mr P. Close, Assistant Divisional Branch Secretary, of the CFMEU.

[6] 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.

[7] 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.

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

SENIOR DEPUTY PRESIDENT

1 Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for the approval of an enterprise agreement made with Cockram Construction Limited. The agreement, which covered the period from 2011 to 2015, contained provisions that the CFMEU claimed were necessary to address issues such as employment conditions, wages, and working hours. Cockram Construction Limited, however, contested the approval of certain aspects of the agreement, arguing that some provisions were not in line with the Fair Work Act 2009 and were not necessary to achieve the agreement's objectives.

The legal issues before the Fair Work Commission involved determining whether the contested provisions of the enterprise agreement were genuinely necessary to achieve the objectives outlined in section 235 of the Fair Work Act. The Commission also had to consider whether these provisions complied with the Act and whether they were consistent with the principles of good faith bargaining and the protection of employees' rights. Furthermore, the Commission examined whether the agreement was made in accordance with the procedures set out in the Fair Work Act.

The Fair Work Commission found that certain provisions of the enterprise agreement were not genuinely necessary to achieve the objectives set out in the agreement. It concluded that these provisions did not comply with the Fair Work Act and were therefore not approved. The Commission emphasised that the agreement must genuinely address the issues outlined in section 235 of the Act and must not impose terms that are not necessary for achieving those objectives. The Commission also noted that the agreement must be made in good faith and must protect the rights of employees. After carefully reviewing the evidence and arguments presented by both parties, the Commission decided that the contested provisions were not genuinely necessary and did not comply with the Act.

The Fair Work Commission did not approve the contested provisions of the enterprise agreement and ordered that these provisions be removed from the agreement. The Commission approved the remaining provisions of the agreement, which were found to be in compliance with the Fair Work Act and genuinely necessary to achieve the objectives of the agreement. The decision underscores the importance of ensuring that enterprise agreements are genuinely necessary, comply with the law, and are made in good faith. The Commission's ruling serves as a reminder to parties involved in enterprise bargaining to carefully consider the necessity and legality of the provisions included in their agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established