Construction, Forestry, Mining and Energy Union

[2013] FWCA 2742

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6229)

MCD CONTRACTORS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 3 MAY 2013

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

[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 parties involved in this case were MCD Contractors Pty Ltd and the Construction, Forestry, Mining and Energy Union. The dispute concerned the approval of a collective agreement for the period 2011-2015. The matter was heard by the Fair Work Commission, an Australian industrial relations tribunal. The Union sought approval of the collective agreement which contained provisions that the employer considered to be overly restrictive and potentially in breach of the applicable industrial instruments.

The legal issues before the Commission were whether the terms of the collective agreement were consistent with the relevant industrial legislation and whether the provisions in the agreement were fair and reasonable. Specifically, the employer argued that certain clauses in the agreement limited its ability to operate efficiently and complied with the Fair Work Act 2009. The Union argued that the provisions were necessary to protect the rights and interests of its members.

The Commission examined the terms of the agreement and the relevant legislation. It found that while some of the provisions were restrictive, they were not inconsistent with the Fair Work Act and were reasonable in the circumstances. The Commission approved the collective agreement with some modifications to address the employer's concerns. The Union and the employer were required to implement the modified agreement, which included provisions for dispute resolution and the protection of employees' rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established