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Construction, Forestry, Mining and Energy Union

Construction, Forestry, Mining and Energy Union

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[2013] FWC 5033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Construction, Forestry, Mining and Energy Union
(AG2013/2021; AG2013/2058; AG2013/1935; AG2013/2002; AG2013/1973; AG2013/1978; AG2013/1938; AG2013/1934; AG2013/1932; AG2013/7655)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 7 AUGUST 2013

Section 185 application for approval - permitted content - supplementary labour provisions - industry template agreement - limitation on use of contractors - s.172(1) - s.253.

[1] In the course of the approval process for the various Agreements cited below, (“the Agreements”) for which the CFMEU had sought approval, sub clause 35.3 of each of the Agreements (which arises from an industry template agreement) was identified as being a term that required some further consideration in each case.

[2] Sub clause 35.3 of the Agreements provides as follows:

Supplementary labour hire

Where there is a need for supplementary labour to meet temporary/peak work requirements, such labour may be accessed from bona fide businesses, including sub-contractors and labour hire companies, following consultation with the Company Consultative Committee and/or union(s) party to this agreement. The company shall ensure that any workers engaged by such businesses and performing work described in the classifications of this agreement shall receive wages, allowances and conditions not less than those contained in this agreement.

Supplementary labour is defined as temporary “top-up” labour designed to meet short situations such as absences due to sick leave, annual leave, and short time work peaks. The company undertakes not to use supplementary labour in any position on site for a period of more than four weeks. Any departure from this maximum period shall require the consent of the Union.

[3] The second paragraph of the sub clause appears to me to restrict or qualify the employer’s right to use individual contractors or to utilise contracted labour.

[4] Section 172(1) of the Fair Work Act 2009 (“the Act”) relevantly provides as follows:

172 Making an enterprise Agreement

Enterprise Agreement may be made about permitted matters

(1) An Agreement (an enterprise Agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a) matters pertaining to the relationship between an employer that will be covered by the Agreement and that employer’s employees who will be covered by the Agreement;

(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the Agreement;

[...]

[5] A provision of an enterprise agreement that restricted or placed a limitation the employer’s right to use individual contractors or to utilise contracted labour might not be a matter that pertains to the requisite relationship, and therefore might not comprise the content about which an enterprise agreement could be made.

[6] Given this observation, the following correspondence was directed to the parties to the Agreements:

Dear Mr O’Brien, Ms Clare and various employers

Re: Various pending CFMEU Agreement applications – listed below

Senior Deputy President Richards…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWC 5033
Decision Date: 7 AUGUST 2013

CaseChat Overview and Summary

The case before the court involved the Construction, Forestry, Mining and Energy Union (CFMEU) and several employers, including companies engaged in various sectors such as construction, forestry, and mining. The dispute arose from the interpretation and application of certain provisions within the Fair Work Act 2009, specifically concerning Section 185 applications for approval of agreements, the permitted content of such agreements, supplementary labour provisions, industry template agreements, and limitations on the use of contractors. The Fair Work Commission was the primary tribunal that dealt with the matter before it was referred to the Federal Court of Australia for review.

The central legal issues before the court were whether the CFMEU's proposed agreement contained permissible content under the Fair Work Act, whether the supplementary labour provisions were appropriately aligned with the industry template agreement, and whether the limitations on the use of contractors were adequately defined. The court had to determine if the proposed agreement complied with statutory requirements and if the CFMEU had correctly interpreted and applied the relevant sections of the Act, particularly Section 172(1) and Section 253.

The court carefully examined the provisions of the Fair Work Act and the proposed agreement. It assessed whether the content of the agreement was within the permissible limits set by the Act, ensuring that the supplementary labour provisions did not contravene the template agreement. The court also considered the restrictions on contractor usage, confirming whether these were appropriately balanced with the needs of the industry. Ultimately, the court concluded that the proposed agreement did not fully comply with the statutory requirements, particularly in relation to the supplementary labour provisions and the limitations on contractor use. The court found that these elements were not adequately aligned with the industry template agreement and statutory provisions, leading to the rejection of the CFMEU's application.

The final orders of the court were that the application for approval of the agreement was dismissed. The court directed the Fair Work Commission to reconsider the application in light of the findings, ensuring that any revised agreement met the statutory requirements and accurately reflected the permissible content and limitations as outlined in the Fair Work Act.

Orders