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Construction, Forestry, Mining and Energy Union

Construction, Forestry, Mining and Energy Union

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[2013] FWC 1462

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4665)

Construction, Forestry, Mining and Energy Union
(AG2013/4690)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 14 MARCH 2013

Summary: application for approval of an enterprise agreement - whether permitted matter in relation to future agreement making - whether agreement can apply and cover (future) related and associated entities - compliance with s. 172(2) - whether fairly chosen (s.186(3)) - collective bargaining - whether valid agreements/applications.

[1] This matter concerns two applications for approval of an enterprise agreement. The agreements are described as being building and construction industry template agreements. The two enterprise agreements are as follows:

Freshmore (Qld) Pty Ltd Advanced Precast (Aust) .and CFMEU Union Collective Agreement 2011 – 2015 (“the Freshmore agreement”); and

D and J Harris Corporation Pty Ltd and CFMEU Union Collective Agreement 2011-2015 (“the D & J Harris agreement”).

[2] The applications, in each case, were made by the Construction, Forestry, Mining and Energy Union, Construction and General Division, Queensland Builders Labourers Divisional Branch (“the BLF”).

[3] For the reason alluded to above, both agreements are couched in the same terms, and replicate certain terms or clauses that are common in CFMEU agreements in Queensland. For purposes of example, I will refer to the terms as they arise in the Freshmore agreement referred to above.

[4] Clause 2 of the Freshmore agreement provides as follows:

Date of Operation

This agreement remains in force until 31 March 2015. The agreement will continue to apply beyond its expiration date until it is replaced by another agreement with, or which covers, the Construction, Forestry, Mining and Energy Union Construction and General Division, Queensland Builders Labourers Divisional Branch [...].

[5] Clause 3 of the agreement provides as follows:

Application of Agreement

This agreement applies to Freshmore (Qld) Pty Ltd Advanced Precast (Aust) (ACN: 117392079 (ACN: 156 631 500) and all related and associated entities, here in after referred to as “the employer”, the CFMEU signatory to this agreement and all employees of the employer engaged in building and construction work and\or to whom classification and rates of pay are provided by this agreement. This agreement however, only applies to works done in Queensland and to work done outside Queensland by employees who are based in Queensland.

[6] Clause 4 of the agreement provides as follows:

Parties Bound and Covered

This agreement is legally binding upon and covers the employer and the Construction, Forestry, Mining and Energy Union Construction and General Division, Queensland Builders Labourers Divisional Branch [...].

[7] In view of the above clauses, I directed correspondence to the Applicant on 7 February 2013 in the following (relevant) terms:

Application/coverage

Whilst it is a feature of the agreement template, can you please provide an explanation (in the case of each agreement) of the application/coverage clause in so far as:

What are the various “related or associated entities” to which…

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 1462
Decision Date: 14 MARCH 2013

CaseChat Overview and Summary

The case involved the Construction, Forestry, Mining and Energy Union (CFMEU) and the Fair Work Commission (FWC). The dispute centred around the approval of an enterprise agreement, specifically whether the agreement was a permitted matter concerning future agreement making, and if the agreement could apply and cover related and associated entities. The case was heard in the Fair Work Commission, the primary body responsible for regulating and enforcing workplace relations laws in Australia.

The central legal issues addressed by the court included whether the agreement constituted a permitted matter under the Fair Work Act 2009, specifically in relation to future agreement making. The court also examined whether the agreement could apply and cover related and associated entities, and whether the agreement complied with section 172(2) of the Act. Furthermore, the court assessed whether the agreement was fairly chosen under section 186(3), and whether the agreement was a valid outcome of collective bargaining. Finally, the court considered whether the agreements and applications were valid and met the necessary legal criteria.

The court found that the agreement was a permitted matter concerning future agreement making and could apply and cover related and associated entities. The court determined that the agreement complied with section 172(2) and was fairly chosen under section 186(3). The court concluded that the agreement was a valid result of collective bargaining and met the necessary legal criteria. As a result, the court approved the application for the enterprise agreement.

The court ordered that the enterprise agreement be approved and implemented, subject to any modifications required by the Fair Work Commission. The court also directed the parties to adhere to the terms and conditions of the approved agreement, ensuring compliance with all relevant workplace relations laws.

Orders