Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 3165

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/1180)

AUSIPILE ADMIN 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 Ausipile Admin 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 15 May 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Ausipile Admin 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 Fair Work Commission involved an application for the approval of the Ausipile Admin Pty Ltd and Construction, Forestry, Mining and Energy Union Collective Agreement for the years 2011 to 2015. The dispute centred on the validity and compliance of the proposed agreement with the requirements of the Fair Work Act 2009. The parties sought resolution through the Fair Work Commission, which is tasked with overseeing and regulating industrial relations in Australia.

The central legal issues revolved around whether the collective agreement met the statutory criteria for approval, including whether it adhered to the procedural fairness requirements and was consistent with the objectives of the Fair Work Act. Specifically, the Commission had to determine if the agreement was genuinely negotiated between the employer and the union, and whether it complied with the provisions for fair and reasonable terms and conditions of employment. The Commission also examined whether the agreement included any unlawful content, such as provisions that might be seen as discriminatory or overly restrictive.

In its decision, the Fair Work Commission found that the proposed agreement did not comply with certain provisions of the Fair Work Act. The Commission highlighted deficiencies in the negotiation process and identified several terms within the agreement that were deemed unreasonable or discriminatory. Consequently, the Commission refused to approve the collective agreement, emphasizing the importance of fair and transparent negotiation processes and the need for agreements to align with the legislative objectives of promoting fair work practices. The Commission's decision underscored the necessity for collective agreements to be both procedurally and substantively fair to all parties involved.

The Fair Work Commission ordered that the Ausipile Admin Pty Ltd and CFMEU Union Collective Agreement for the period 2011 to 2015 be not approved. The Commission directed the parties to revisit the negotiation process and revise the agreement to ensure it met all statutory requirements. The decision served as a reminder of the importance of adhering to the legislative framework governing industrial relations and the role of the Fair Work Commission in safeguarding fair work practices.

Construction, Forestry, Mining and Energy Union

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