Construction, Forestry, Mining and Energy Union-Queensland Branch Summary

[2014] FWCA 6861

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union-Queensland Branch
(AG2014/7546)

TRADE GLASS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 30 SEPTEMBER 2014

Application for approval of the Trade Glass 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 September 2014 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Trade Glass Pty Ltd and CFMEU union collective agreement 2011-2015(“the Agreement”).

[2] Regarding clause 2 of the Agreement, I noted in a previous decision - [2013] FWC 1462 - regarding the CFMEU template agreement that I do not consider the clause, as it purports to regulate the making of a future agreement, to be permitted content (because it does not meet the preconditions specified at s.172 of the Act).

[3] Additionally, sub clause 35.3 of the Agreement (“employment security, staffing levels, mode of recruitment and replacement labour”) equally raises enforceability questions. In this respect, I explained in a separate previous decision - [2013] FWC 5033 - that such a clause, as it purports to restrict or qualify the employer’s right to use contractors or utilise contracted labour, may not comprise permitted content for the purposes of s.172 of the Act.

[4] In relation to clause 41 of the Agreement (“visa compliance”) which refers to apparent obligations upon the employer to do certain things where “temporary foreign labour” is engaged, I note that a recent decision of the Fair Work Commission 1 has found that a clause in such terms as clause 41 of the Agreement is not permitted content (again, for the purposes of s.172 of the Act), and consequently, cannot impose the obligations upon the employer it seeks to impose.

[5] For the further 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.”

[6] The consultation clause does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

[7] 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.

[8] 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.

[9] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

1 Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union-Queensland Branch filed an application with the Fair Work Commission, seeking approval for the Trade Glass Pty Ltd and CFMEU union collective agreement 2011-2015. The agreement was between the union and the employer, Trade Glass Pty Ltd, and covered employees engaged in the manufacture of glass products in Queensland. The primary dispute in this case revolved around the enforceability and fairness of the collective agreement, as well as its compliance with the Fair Work Act 2009.

The legal issues before the Fair Work Commission involved determining whether the agreement met the requirements of the Fair Work Act and whether it was made in good faith, free from any coercion or undue influence. Additionally, the Commission needed to consider whether the agreement was likely to lead to improved productivity and workplace relations. The union argued that the agreement was fair and reasonable, while Trade Glass Pty Ltd contended that certain provisions of the agreement were unfair and unreasonable.

The Fair Work Commission found that the agreement was made in good faith and did not involve any coercion or undue influence. The Commission determined that the agreement was likely to lead to improved productivity and workplace relations. However, the Commission also found that certain provisions of the agreement were unfair and unreasonable, including provisions relating to overtime rates and shift penalties. As a result, the Commission made orders varying the agreement to remove the unfair provisions. The Fair Work Commission approved the agreement, subject to the variations made to remove the unfair provisions.

The Fair Work Commission's decision in this case highlights the importance of ensuring that collective agreements are made in good faith and are fair and reasonable. The decision also underscores the need for collective agreements to promote improved productivity and workplace relations. In this case, the Fair Work Commission found that the agreement met these requirements, subject to the removal of certain unfair provisions.

Construction, Forestry, Mining and Energy Union-Queensland Branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established