Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2463

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4665)

D & J HARRIS CORPORATION PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 22 APRIL 2013

Application for approval of the D & J Harris Corporation 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 24 January 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the D & J Harris Corporation 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

In the case of Construction, Forestry, Mining and Energy Union, the applicants, the Construction, Forestry, Mining and Energy Union (CFMEU) and the D & J Harris Corporation Pty Ltd, sought approval of their collective agreement for the period 2011-2015. The Fair Work Commission (FWC) was the tribunal tasked with reviewing and approving the agreement under the Fair Work Act 2009.

The primary legal issues before the FWC were whether the collective agreement complied with the provisions of the Fair Work Act, including the requirement that it be in the best interests of the employees and did not unfairly discriminate against any group of employees. Additionally, the FWC had to consider whether the agreement provided for fair and reasonable terms and conditions, and whether it was consistent with the principles of enterprise bargaining.

In examining the agreement, the FWC took into account the bargaining positions of the parties, the nature of the industry, and the terms and conditions proposed in the agreement. The FWC noted that the agreement had been negotiated in good faith and reflected a balance between the interests of the employer and the employees. The Commission found that the agreement provided for fair and reasonable terms and conditions, and that it was in the best interests of the employees. The FWC also determined that the agreement did not unfairly discriminate against any group of employees, and was consistent with the principles of enterprise bargaining.

The FWC approved the collective agreement, noting that it met the statutory requirements under the Fair Work Act. The approval was based on the finding that the agreement provided for fair and reasonable terms and conditions, was in the best interests of the employees, and did not unfairly discriminate against any group of employees. The FWC's decision was a significant step in ensuring that the agreement would provide a stable and fair framework for the employment relationship between the CFMEU, D & J Harris Corporation Pty Ltd, and their employees.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established