Construction, Forestry, Mining and Energy Union - [2013] FWC 912

[2013] FWC 912

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/12911)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 26 FEBRUARY 2013

Summary: objection on basis of coverage - undertaking about coverage restriction - implication of coverage clause for contractors clause - security of employment - relational nexus - permitted matters - s.253(1) - s.356.

[1] On 10 December 2012, an application was made by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of the Mirvac Hamilton Park South (Reedy Creek) Project Union Greenfields Agreement (“the Agreement”). The Agreement purports to apply to employees who are employed under the classifications set out at clause 12 thereof. This is a particularly wide set of classifications, which may extend beyond the coverage provided for under the rules of the CFMEU.

[2] On its face therefore, an issue arises, in the context of the application clause in the Agreement as to how the Fair Work Commission (“the Commission”) could be satisfied that the Agreement meets the requirements of s.187(5)(a) of the Fair Work Act 2009 (“the Act”).

[3] Section 187(5)(a) of the Act provides as follows:

187 When the FWC must approve an enterprise agreement—additional requirements

...

Requirements relating to greenfields agreements

(5) If the agreement is a greenfields agreement, the FWC must be satisfied that:

(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

...

[4] Notwithstanding this, I am satisfied that on the evidence that has now come before me that the Agreement, despite the terms of its application clause, in actuality meets the requirements of s.187(5)(a) of the Act. The following sets out how the requisite degree of satisfaction was achieved, and how other consequential issues must be dealt with for purposes of the approval process.

[5] On 17 December 2012 and 21 December 2012, the Australian Workers Union (“the AWU”) directed correspondence to the Commission stating that it objected to the approval of the Agreement on the basis that the Agreement was made with an employee organisation that could not represent the industrial interests of a majority of the employees who will be covered by the agreement.

[6] Before proceeding, it is best first of all to set out the application provisions of the agreement so that the AWU’s objection, as it was, can be better appreciated.

[7] Clause 3(a)(ii) of the Agreement states that the Agreement covers the CFMEU, the employer and the employees of the employer who will:

(i) Perform on-site construction work within the employer's scope of work during performance of the Mirvac Hamilton Park South (Reedy Creek) project in any of the work classifications identified in sub clause 12.3 of…

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 912
Decision Date: 26 FEBRUARY 2013

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union, which brought an objection on the basis of coverage. The dispute centred around an undertaking provided by the union about coverage restrictions and the implication of a coverage clause in relation to contractors. The case was heard in a relevant Australian court. The union argued that the coverage clause in question was not limited to the relational nexus between the union and contractors, but rather extended to a broader range of permitted matters as outlined in sections 253(1) and 356 of the relevant legislation.

The legal issues that the court had to address included the interpretation of the coverage clause and its implications for the union's obligations towards contractors. The union contended that the clause should be narrowly construed to only apply to the relational nexus between itself and contractors, while the opposing party argued for a broader interpretation that would encompass a wider range of matters. The court had to determine the correct interpretation of the coverage clause and whether it extended beyond the relational nexus between the union and contractors.

In reaching its decision, the court considered the language of the coverage clause and the broader context in which it was situated. The court found that the clause was not limited to the relational nexus between the union and contractors, but rather had a broader scope that included a range of permitted matters. The court held that the union's undertaking about coverage restrictions was therefore valid and in accordance with the correct interpretation of the coverage clause. The court's decision was based on a careful analysis of the language of the clause and the broader context in which it was situated.

The final orders of the court confirmed the validity of the union's undertaking about coverage restrictions and upheld the interpretation of the coverage clause as extending beyond the relational nexus between the union and contractors. The court's decision provided clarity on the scope of the coverage clause and the union's obligations towards contractors, and resolved the dispute in favour of the union.

Orders