Construction, Forestry, Mining and Energy Union

[2013] FWC 5632

[2013] FWC 5632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5559)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 AUGUST 2013

Uplift Crane Hire (QLD) Pty Ltd and CFMEU Union Collective Agreement 2011-2015 - application for approval dismissed.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 11 March 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Uplift Crane Hire (QLD) Pty Ltd and CFMEU Union Collective Agreement 2011-2015 (“the Agreement”).

[2] The Agreement purported to apply to the employer - Uplift Crane Hire (QLD) Pty Ltd (ACN: 122 120 549) - and all associated entities. This expression of the purported application of the Agreement was common to the CFMEU template agreement (which the Agreement in question follows).

[3] On 14 March 2013 I issued a decision - [2013] FWC 1462 - regarding the purported application of the template agreement to all associated entities of the named employer. In that decision I determined as follows:

[79] I have found in relation to Issue 2(a) above that an agreement that purports to apply and to cover employers (other than the employer which has identified itself in the Form F17) in the future (where defined circumstances arise) would not be an agreement for the purposes of s.172(2) of the Act. Consequently, I could not exercise the Commission’s jurisdiction to approve an agreement of such a kind as such a jurisdiction does not exist. Clause 3 of the agreements here under consideration is such a clause.

[80] I have also found in relation to Issue 2(b) above that where an agreement purports to cover and apply prospectively to employees employed by employing entities of any kind that may be established in the future (subject to various circumstances), it may be concluded that such employees are not fairly chosen (under s.186(3) of the Act, for the purposes of being covered by the agreement.

[81] The agreements before me do not meet the requirements of s.186(3) of the Act because I cannot be satisfied at the point of approval that the group of employees to be covered by the agreement (as it may be in the future) is fairly chosen. The group is also uncertain as to its identity.

[82] At Issue 2(c) above, I have found that the Agreements (for various reasons) do not meet the requirements of s.172 of the Act, because the requisite relationship(s) under s.172(5) of the Act cannot be made out at the time of the approval.

[4] Rather than refusing to approve the agreements at that point, I asked the parties to make further submissions about how they could preserve the bargain struck in the agreements.

[5] On 3 April 2013 I issued a further procedural decision - [2013] FWC 1902 - noting that I had not received any submissions from the parties that moved me from my initial position. That decision also noted that I considered that the affected agreements could be amended to remove the offending provision, with the amended agreements (upon employee vote) being able to be considered for approval by the Commission:

[13] In my view, the Agreement before me can be varied so as to amend the relevant clauses so that they are compliant with the requirements of s.172 of the Act. This would require that the steps for the approval of a proposed single-enterprise agreement be followed, at least from s.180 of the Act (inclusive). I would not consider that it was necessary to reissue the notice of employee representational rights, but all other steps would need to be undertaken to ensure the appropriate affirmation of the statutory requirements.

[14] I will allow the parties 72 hours in which to confer and indicate if this is the course they agree to follow in order to ensure a valid application is before the Commission. If there is no agreement to amend the application in an agreed and appropriate way, I will move to not approve the Agreement.

[6] The application in question - AG2013/5559 - was specifically referred to in that decision as an additional pending application that would require addressing as a result of that decision.

[7] A number of affected pending applications were amended in light of the above decisions and the agreements (as amended) were approved.

[8] The application in question remained outstanding and on 23 July 2013 I wrote to the CFMEU as the Applicant and the employer in the following terms:

Dear Ms Clare and Mr Nouh

Re:         AG2013/5559 – Application by the CFMEU re Uplift Crane Hire (QLD) Pty Ltd and CFMEU Union Collective Agreement 2011-2015

I refer to the above application for approval of an enterprise agreement.

This agreement was affected by the “associated entities” issue dealt with by Senior Deputy President Richards earlier this year. As Ms Clare is aware, Senior Deputy President Richards determined that he could not approve the agreements with the clause in question, but considered that an agreement with the offending clause could be amended by the parties and put to the employees for a vote, with the amendment explained. A statutory declaration would be filed with the amended agreement.

The decision issued on 3 April 2013 – [2013] FWC 1902 (attached) – referred to this application (as well as another) as being one that required amendment by the parties. As some time has passed since the issue of that decision, and noting that the great majority of the other affected applications have been amended and finalised, His Honour asks whether the parties intend amending this agreement and seeking its approval?

Please advise by COB on 26 July as to whether the parties continue to press this application. If they do, taking into account the process of amending the agreement and taking another vote, the amended agreement and statutory declarations should be filed by COB on 2 August 2013. If nothing is advised by that time, the application will be dismissed.

[9] Despite the significant time lapse and the further email of 23 July 2013, no amended agreement has been forthcoming from the Applicant or the employer. I consider that the parties have had sufficient time to rectify the application if that was their intention.

[10] As such, as I do not consider that the application before me can be approved, and for reasons set out in the above decisions, the application is therefore dismissed.

SENIOR DEPUTY PRESIDENT

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