Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2258

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5955)

QLD ASBESTOS REMOVALS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 APRIL 2013

Application for approval of the QLD Asbestos Removals 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 9 April 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the QLD Asbestos Removals Pty Ltd and CFMEU Union Collective Agreement 2011-2015(“the Agreement”).

[2] A statutory declaration was provided by Mr D. Hanna, Divisional Secretary, of the CFMEU.

[3] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[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.

[5] 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.”

[6] 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.

[7] 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 matter before the Fair Work Commission involved an application for approval of the Queensland Asbestos Removals Pty Ltd and Construction, Forestry, Mining and Energy Union (CFMEU) Union Collective Agreement 2011-2015. The dispute centred on whether the agreement met the requirements for approval under the Fair Work Act 2009. The Commission was tasked with determining if the agreement contained terms and conditions that complied with the provisions of the Act, specifically focusing on the procedural fairness and good faith bargaining aspects.

The key legal issues that the Commission addressed included whether the agreement had been genuinely negotiated between the parties, whether it adhered to the mandatory provisions of the Fair Work Act, and whether it complied with the standards of procedural fairness. The Commission needed to ensure that the agreement did not undermine the minimum protections provided under the Fair Work Act and that it was the result of genuine negotiations between the parties.

The Fair Work Commission found that the agreement had been genuinely negotiated in good faith and that it complied with the mandatory provisions of the Fair Work Act. The Commission noted that the agreement contained terms and conditions that were no less favourable than the relevant award or the national system of employment and that it met the standards of procedural fairness. The Commission concluded that the agreement did not undermine the minimum protections provided under the Fair Work Act and was therefore approved.

As a result of this determination, the Fair Work Commission approved the Queensland Asbestos Removals Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The agreement was deemed to be valid and enforceable, providing the basis for employment conditions between the parties for the specified period.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established