Construction, Forestry, Mining and Energy Union

[2013] FWCA 3158

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6403)

QPI RIGGING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 21 MAY 2013

Application for approval of the QPI Rigging 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 14 May 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the QPI Rigging Pty Ltd and CFMEU Union Collective Agreement 2011-2015(“the Agreement”).

[2] A statutory declaration was provided by Mr D. Hanna, Branch Secretary, of the CFMEU.

[3] 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.

[4] 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.

[5] 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.”

[6] 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.

[7] 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of a collective agreement with QPI Rigging Pty Ltd for the period 2011 to 2015. The CFMEU argued that the agreement, which contained various employment terms, met the requirements of the Fair Work Act 2009. The company, QPI Rigging, contested the application, asserting that certain provisions of the agreement were not bona fide and failed to comply with the Act. The legal issues before the Commission centred on whether the collective agreement was genuinely negotiated, whether it complied with the Act, and whether it met the criteria for approval as set out in section 234 of the Fair Work Act. The Commission examined the negotiation process and the content of the agreement, considering whether it was made in good faith and whether it contained terms that were not contrary to public policy or industrial detriment. The Commission found that the agreement had been genuinely negotiated and contained terms that were not contrary to public policy or industrial detriment. It determined that the agreement met the criteria for approval under section 234 of the Fair Work Act. The Commission approved the collective agreement, recognising its compliance with the statutory requirements and its potential to provide a fair and effective framework for the employment relationship between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established