Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 3141

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4786)

DYNAMIC CONCRETE PUMPING (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 20 MAY 2013

Application for approval of the Dynamic Concrete Pumping (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 1 February 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”), for the approval of a single-enterprise agreement known as the Dynamic Concrete Pumping (QLD) Pty Ltd and CFMEU Union Collective Agreement 2011-2015 (“the Agreement”). This agreement was amended consistent with my decision in [2013] FWC 1901 prior to consideration for approval.

[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.”

[1] 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.

[2] 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.

[3] 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 case of Construction, Forestry, Mining and Energy Union involved an application for approval of the Dynamic Concrete Pumping (QLD) Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The dispute arose from the collective agreement between the Construction, Forestry, Mining and Energy Union (CFMEU) and Dynamic Concrete Pumping (QLD) Pty Ltd, which was submitted for approval to the Fair Work Commission. The court was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues before the court were whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. Procedurally, the court needed to assess if the agreement was genuinely negotiated between the parties and if the necessary consultation processes were followed. Substantively, the court had to ensure the agreement did not contravene the provisions of the Act, such as those relating to unfair dismissal, redundancy, and unfair work practices. Additionally, the court considered if the agreement provided for fair and reasonable terms and conditions of employment.

In its reasoning, the court found that the agreement had been genuinely negotiated between the parties, and the required consultation processes were followed. It was determined that the agreement did not contain any terms that were contrary to the Fair Work Act. The court also concluded that the terms and conditions of employment provided in the agreement were fair and reasonable, taking into account the bargaining power of the parties and the overall economic context. As a result, the court approved the agreement under the Fair Work Act.

The final orders of the court were to approve the Dynamic Concrete Pumping (QLD) Pty Ltd and CFMEU Union Collective Agreement 2011-2015, confirming its validity and enforceability under the Fair Work Act. The court's decision provided certainty for both the union and the employer regarding the terms and conditions of employment for the period covered by the agreement.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established