Construction, Forestry, Mining and Energy Union

[2013] FWCA 2448

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/784)

METRO FACADES PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-

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

Application for approval of the Metro Facades 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 3 April 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Metro Facades 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.”

[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.

[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

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for the approval of a collective agreement with Metro Facades Pty Ltd, effective from 2011 to 2015. The dispute centered on whether the proposed terms of the agreement met the requirements under the Fair Work Act 2009 for being a lawful and fair agreement. The central legal issues revolved around whether the agreement contained provisions that were contrary to public policy, whether the agreement was procedurally sound, and if it met the standards of good faith bargaining and fairness as mandated by the Act.

The Fair Work Commission examined the agreement closely, considering its compliance with the statutory framework. The court found that several provisions of the agreement were indeed contrary to public policy, specifically those that allowed for the termination of employment based on an employee’s union membership. Such provisions were deemed to contravene the principles of fairness and good faith as they could be seen as discriminatory. Furthermore, the court held that the agreement did not meet the procedural requirements, as there was evidence suggesting that the bargaining process was not conducted in good faith.

As a result of these findings, the Fair Work Commission rejected the application for approval of the collective agreement. The court concluded that the agreement could not be certified as it failed to meet the statutory standards for good faith bargaining and contained provisions that were not only unlawful but also detrimental to the employees' rights. The rejection of the agreement was a clear directive that such terms would not be enforceable, reinforcing the importance of adhering to legislative mandates in collective bargaining processes.

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