Construction, Forestry, Mining and Energy Union

[2013] FWCA 2912

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6246)

ADFINIS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 MAY 2013

Application for approval of the Adfinis 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 2 May 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Adfinis Pty Ltd and CFMEU Union Collective Agreement 2011-2015 (“the Agreement”).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application.

[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] 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.

[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

In the matter of an application for the approval of the Adfinis Pty Ltd and Construction, Forestry, Mining and Energy Union (CFMEU) Union Collective Agreement 2011-2015, the case came before the Fair Work Commission. The primary concern was the procedural fairness and appropriateness of the application, given that the agreement in question was between a private company and a union representing its employees. The dispute centred on whether the application was made in accordance with the relevant industrial relations legislation and if the agreement was fair and reasonable in its terms.

The court had to determine whether the application process followed due process and adhered to the requirements set out in the Fair Work Act 2009. Specifically, the court examined whether the application was lodged within the stipulated timeframe and whether the necessary information and documentation were provided. Additionally, the court needed to consider whether the agreement itself was fair and appropriate, taking into account the interests of both the employer and the employees, and whether it complied with the objectives of the Act.

The court found that the application process was conducted in a manner that was procedurally fair and in accordance with the requirements of the Fair Work Act. The court also concluded that the collective agreement was fair and reasonable, as it provided for appropriate terms and conditions of employment that were in line with the objectives of the Act. The court noted that the agreement addressed key issues such as wages, working conditions, and dispute resolution mechanisms, and that it was the result of good faith negotiations between the parties. Based on these findings, the court approved the application for the collective agreement.

Consequently, the Fair Work Commission granted approval for the Adfinis Pty Ltd and CFMEU Union Collective Agreement 2011-2015, recognising it as a valid and binding instrument under the Fair Work Act. The court's decision affirmed the importance of procedural fairness in the application process and the need for collective agreements to be fair and reasonable for both employers and employees. This decision serves as a reminder for parties to ensure that their agreements are in compliance with the objectives of the Fair Work Act and that the application process is conducted in accordance with the relevant legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established