Construction, Forestry, Mining and Energy Union

[2013] FWCA 1371

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/370)

V.T. SERVICES PTY LTD AND CFMEU UNION GREENFIELDS AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 11 MARCH 2013

Application to approve the V.T. Services 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 20 February 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the V.T. Services 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

The matter before the Fair Work Commission involved an application by V.T. Services Pty Ltd for approval of a greenfields agreement with the Construction, Forestry, Mining and Energy Union (CFMEU) for the period 2011 to 2015. The primary dispute centred around whether the proposed agreement complied with the statutory requirements under the Fair Work Act 2009, particularly regarding the good faith bargaining process and the provisions of the agreement itself. The Commission was tasked with determining if the agreement was fair and appropriate, and whether it met the necessary standards for approval.

The legal issues the Commission needed to resolve included whether V.T. Services Pty Ltd had engaged in good faith bargaining with the CFMEU and if the terms of the proposed agreement were fair and reasonable. Additionally, the Commission had to assess whether the agreement included all the mandatory terms prescribed by the Fair Work Act and if it adhered to the principles of enterprise bargaining and good faith. The Commission also considered whether the agreement contained any provisions that were contrary to public policy or that might lead to unfair treatment of employees.

In reaching its decision, the Fair Work Commission examined the evidence presented by both parties regarding the bargaining process and the content of the agreement. The Commission found that V.T. Services Pty Ltd had engaged in good faith bargaining with the CFMEU and that the terms of the proposed agreement were fair and reasonable. The Commission concluded that the agreement met all the statutory requirements under the Fair Work Act and did not contain any provisions that were contrary to public policy. Consequently, the Commission approved the V.T. Services Pty Ltd and CFMEU union greenfields agreement for the period 2011 to 2015.

The final orders of the Commission included the approval of the greenfields agreement between V.T. Services Pty Ltd and the CFMEU, effective from the specified period. The Commission directed that the agreement be registered with the Fair Work Commission and that it would be subject to the enforcement and dispute resolution mechanisms provided under the Fair Work Act.

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