Construction, Forestry, Mining and Energy Union

[2013] FWCA 1616

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/551)

MAYFORD CONTRACTING PTY LTD AND CFMEU UNION GREENFIELDS AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 21 MARCH 2013

Application to approve the Mayford Contracting Pty Ltd and CFMEU Union Greenfields Agreement 2011-2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 8 March 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the Mayford Contracting Pty Ltd and CFMEU Union Greenfields 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.

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] A statutory declaration was provided by Mr P. Close, Assistant Divisional Branch Secretary, of the CFMEU.

[4] 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.

[5] 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.

[6] 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 the Construction, Forestry, Mining and Energy Union (CFMEU) and Mayford Contracting Pty Ltd. The dispute centred on the approval of the Mayford Contracting Pty Ltd and CFMEU Union Greenfields Agreement 2011-2015. The parties appeared before the Commission to seek approval for the proposed agreement which aimed to regulate the employment conditions of workers in the Greenfields area. The Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The primary legal issues before the Commission included whether the agreement was a protected action bargaining agreement, whether it was appropriately certified, and whether it complied with the provisions of the Fair Work Act. Additionally, the Commission needed to consider whether the agreement met the good faith bargaining requirements and if it was in the best interests of the employees covered by the agreement. The Commission also had to evaluate the procedural fairness of the bargaining process.

In its decision, the Commission held that the Mayford Contracting Pty Ltd and CFMEU Union Greenfields Agreement 2011-2015 was a protected action bargaining agreement, as it related to the terms and conditions of employment for workers covered by the agreement. The Commission found that the agreement was appropriately certified and met the requirements of the Fair Work Act. Furthermore, the Commission determined that the agreement was made in good faith and was in the best interests of the employees. The Commission concluded that the bargaining process was procedurally fair, and the agreement should be approved.

The Fair Work Commission approved the Mayford Contracting Pty Ltd and CFMEU Union Greenfields Agreement 2011-2015, subject to certain modifications to ensure compliance with the Fair Work Act. The modifications included the removal of certain clauses that were found to be contrary to the public interest. The Commission's decision provided clarity on the requirements for approving agreements under the Fair Work Act and reinforced the importance of good faith bargaining and procedural fairness in the workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established