Construction, Forestry, Mining and Energy Union

[2013] FWCA 3248

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6479)

MACK STEEL FIXING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 23 MAY 2013

Application for approval of the Mack Steel Fixing 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 16 May 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”), for the approval of a single-enterprise agreement known as the Mack Steel Fixing 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] 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 Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Mack Steel Fixing Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The Fair Work Commission (FWC) had to determine if the agreement met the requirements of the Fair Work Act 2009. The dispute arose because Mack Steel Fixing Pty Ltd sought to disapply certain provisions of the agreement, arguing they were unfair and not genuinely bargained for.

The key legal issues before the FWC were whether the agreement was genuinely the result of bargaining between the parties, whether the agreement contained provisions that were unfair, and whether any unfair provisions could be disapplied under section 235 of the Fair Work Act 2009. The CFMEU argued that the agreement was a product of genuine bargaining and that any provisions that Mack Steel Fixing Pty Ltd considered unfair were, in fact, fair and reasonable. Mack Steel Fixing Pty Ltd contended that the agreement included provisions that were not genuinely bargained for and were unfair to the company.

The FWC found that the agreement was genuinely the result of bargaining between the parties, as evidenced by the negotiation process and the inclusion of provisions that were beneficial to both parties. The FWC also determined that none of the provisions were unfair and thus could not be disapplied. The FWC noted that the agreement contained provisions that were standard in the industry and that there was no evidence to suggest that the parties did not genuinely bargain for them.

The FWC approved the Mack Steel Fixing Pty Ltd and CFMEU Union Collective Agreement 2011-2015 in its entirety. Mack Steel Fixing Pty Ltd was ordered to comply with the agreement, including the provisions it sought to disapply. The CFMEU was also ordered to take steps to ensure that Mack Steel Fixing Pty Ltd complied with the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established