Construction, Forestry, Mining and Energy Union

[2013] FWCA 3232

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/1199)

PRADSTRUCT PTY LTD T/A PRADELLA AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 22 MAY 2013

Application for approval of the Pradstruct Pty Ltd t/a Pradella 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 Pradstruct Pty Ltd t/a Pradella 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.”

[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] 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.

[6] 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.

[7] 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 involved Pradstruct Pty Ltd, trading as Pradella, and the Construction, Forestry, Mining and Energy Union. The dispute centred on the approval of a collective agreement between the parties for the period 2011-2015. The application for approval was brought before the Fair Work Commission, an Australian federal statutory body with jurisdiction over workplace relations matters. The union sought to have the agreement approved, while the employer contested certain aspects of the proposed terms.

The central legal issues before the Commission were whether the collective agreement complied with the relevant legislative framework and whether the terms were fair and reasonable. Specifically, the Commission needed to determine if the agreement met the requirements of the Fair Work Act 2009, including provisions related to employee entitlements, working conditions, and dispute resolution mechanisms. The Commission also had to consider the balance of the agreement in terms of fairness and reasonableness, given the bargaining positions of the parties and the broader economic context.

In its decision, the Commission carefully reviewed the proposed agreement against the statutory provisions and the principles of fairness and reasonableness. The Commission found that while some terms of the agreement were contentious, they were not so unreasonable as to warrant refusal of approval. The Commission noted the need for a balance between the rights of employers and employees and concluded that the overall agreement did not unduly favour one party over the other. Consequently, the Commission approved the collective agreement, subject to certain conditions to ensure compliance with the Fair Work Act.

The Fair Work Commission approved the collective agreement between Pradstruct Pty Ltd and the Construction, Forestry, Mining and Energy Union for the period 2011-2015. The approval was subject to the conditions outlined by the Commission, aimed at ensuring that the agreement complies with the Fair Work Act and maintains a fair and reasonable balance between the parties.

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