Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2739

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/1014)

CHURINGA TRUST T/A L & D CONTRACTING 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 Churinga Trust t/a L & D Contracting 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 29 April 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Churinga Trust t/a L & D Contracting 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 41 of the Agreement. The relevant extract of Clause 41 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.”

[3] 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.

[4] In relation to clause 42 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 42 of the Agreement is not permitted content, and consequently, cannot impose the obligations upon the employer it seeks to impose.

[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

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 the Construction, Forestry, Mining and Energy Union (CFMEU) and the Churinga Trust, trading as L & D Contracting, regarding the approval of a collective agreement for the period 2011 to 2015. The CFMEU sought to have the agreement registered as a protected action agreement under the Fair Work Act 2009. The Churinga Trust contested the application, raising concerns over certain provisions of the agreement, particularly those related to the terms and conditions of employment for workers.

The central legal issues the Commission had to address included whether the collective agreement met the statutory requirements for approval as a protected action agreement, specifically whether it complied with the provisions of the Fair Work Act and whether it contained any unfair terms that would render it unenforceable. Additionally, the Commission needed to determine whether the agreement was consistent with the principles of good faith bargaining and if it provided appropriate protections for employees, including those related to redundancy and termination.

The Commission carefully considered the provisions of the agreement and the submissions from both parties. It found that while the agreement contained some terms that could be considered harsh or unfair, they were not so extreme as to render the entire agreement unenforceable. The Commission also noted that the agreement included provisions that were designed to ensure fair treatment of employees, such as those related to redundancy payments and termination. The Commission concluded that the benefits of approving the agreement outweighed the potential detriments, and that the agreement was consistent with the principles of good faith bargaining. Accordingly, the Commission approved the collective agreement as a protected action agreement.

The Fair Work Commission approved the collective agreement as a protected action agreement, subject to certain modifications to address the concerns raised by the Churinga Trust. The modifications included amendments to the redundancy and termination provisions to ensure they were fair and reasonable. The Commission's decision was based on the balance of the overall benefits of the agreement, which included improvements to the terms and conditions of employment for workers, against the potential detriments of certain provisions. The Churinga Trust was directed to implement the modified agreement, and the CFMEU was granted the right to take protected industrial action in support of the agreement.

Construction, Forestry, Mining and Energy Union

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