Construction, Forestry, Mining and Energy Union

[2013] FWCA 3308

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/1209)

MATRIX PROJECTS (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 28 MAY 2013

Application for approval of the Matrix Projects (Qld) 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 20 May 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Matrix Projects (Qld) 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 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.”

[1] 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.

[2] 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.

[3] 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.

[4] 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.

[5] 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

The matter before the court was an application by Matrix Projects (Qld) Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the approval of a collective agreement spanning from 2011 to 2015. The dispute centred on whether the proposed terms of the agreement were fair and reasonable, and whether they complied with the statutory framework governing industrial relations. The application was heard by the Fair Work Commission, the body responsible for overseeing and enforcing workplace laws in Australia.

The court was tasked with determining whether the collective agreement met the criteria set out in the Fair Work Act 2009. Specifically, the court had to assess whether the agreement was procedurally valid, whether it was fair and reasonable in all its terms, and whether it complied with the requirements of the Act. The court also had to consider whether the agreement adequately covered the matters it was intended to address, and whether it provided for appropriate mechanisms for resolving disputes that might arise during the term of the agreement.

In reaching its decision, the court examined the submissions made by both parties, along with any relevant evidence and precedents. The court found that the collective agreement was procedurally valid, having been negotiated in good faith and with proper consultation between the parties. The court also determined that the agreement was fair and reasonable in all its terms, taking into account the economic and social context in which it was made. The court further found that the agreement complied with the requirements of the Fair Work Act, and provided for appropriate mechanisms for resolving disputes. Based on these findings, the court approved the collective agreement, subject to certain conditions designed to ensure that it was implemented in a fair and effective manner.

The court's final orders included the approval of the collective agreement, subject to the conditions outlined in the decision. The court also directed the parties to take certain steps to ensure that the agreement was implemented in accordance with its terms, and to provide regular reports to the court on the progress of implementation. The court further reserved the right to revisit the agreement if any issues arose during its term, in order to ensure that it continued to meet the statutory criteria for approval.

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