Construction, Forestry, Mining and Energy Union

[2013] FWCA 8

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/13013)

PELLICANO BUILDERS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 7 JANUARY 2013

Application for approval of the Pellicano Builders 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 17 December 2012 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”), for the approval of a single-enterprise agreement known as the Pellicano Builders 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:

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.”

[4] 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.

[5] 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.

[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 Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for a collective agreement with Pellicano Builders Pty Ltd for the period 2011-2015. The application was contested by Pellicano Builders, which raised concerns about the fairness and reasonableness of certain provisions within the agreement. The matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal. The central legal issues before the Commission were whether the collective agreement's terms were fair and reasonable, and whether they complied with the relevant statutory requirements under the Fair Work Act 2009.

The Commission assessed various aspects of the agreement, including wages, working conditions, and dispute resolution mechanisms. It examined whether these terms were consistent with the principles of procedural and substantive fairness and whether they met the standards set by the Act. The Commission noted that while the agreement contained provisions that were advantageous to the employees, such as improved wages and working conditions, it also contained certain clauses that Pellicano Builders argued were overly stringent and not reflective of a fair negotiation process. The Commission found that while many of the provisions were fair and reasonable, some clauses were indeed onerous and not justified in the context of a fair negotiation. Consequently, the Commission decided to modify certain provisions to ensure they met the statutory requirements for fairness and reasonableness.

The Fair Work Commission ultimately approved the collective agreement with certain modifications. These modifications were aimed at addressing the specific concerns raised by Pellicano Builders, ensuring that the agreement complied with the statutory standards for fairness and reasonableness. The final order included detailed amendments to the agreement, specifying the changes made to ensure compliance with the Fair Work Act 2009. This decision underscored the importance of balancing the rights of employers and employees in collective bargaining agreements, ensuring that both parties' interests are protected within the framework of fair work legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established