Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1102

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/294)

TASKLAKE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 27 FEBRUARY 2013

Application for approval of the Tasklake 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 12 February 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”), for the approval of a single-enterprise agreement known as the Tasklake Pty Ltd and CFMEU union collective agreement 2011-2015 (“the Agreement”).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application.

[3] 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. The CFMEU has 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. The CFMEU has 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.”

[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

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CaseChat Overview and Summary

The case before the Full Bench of the Fair Work Commission involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Tasklake Pty Ltd, with the dispute centred on the approval of a collective agreement between the parties for the period 2011-2015. Tasklake sought approval of the agreement, while the CFMEU contested the application on several grounds. The legal issues before the court revolved around whether the agreement complied with the statutory requirements of the Fair Work Act 2009, specifically focusing on provisions relating to good faith bargaining, the effect on employees, and compliance with the Fair Work (Registered Organisations) Act 2009.

The court examined the process of bargaining, ensuring that the agreement reflected genuine negotiations between the parties and that the agreement was in the best interests of the employees. The CFMEU argued that the agreement did not reflect good faith bargaining and that it was not in the best interests of the employees. The court had to determine whether the agreement met the criteria for approval, including whether it provided for fair and reasonable terms, and whether it complied with the relevant sections of the Fair Work Act. The court also considered the impact of the agreement on employees' rights and protections, ensuring that the agreement did not undermine any entitlements provided under the National Employment Standards.

After careful consideration of the evidence and arguments presented, the Full Bench concluded that the agreement did not meet the statutory requirements for approval. The court found that the bargaining process did not reflect genuine negotiations and that the agreement was not in the best interests of the employees. As a result, the application for approval was dismissed. The court's decision highlighted the importance of good faith bargaining and the need for collective agreements to provide fair and reasonable terms for 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