G. James Glass & Aluminium (Qld) Pty Ltd Summary

[2013] FWCA 8269

FAIR WORK COMMISSION

DECISION

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

G. James Glass & Aluminium (Qld) Pty Ltd
(AG2013/10727)

G JAMES GLASS AND CFMEU UNION COLLECTIVE AGREEMENT 2013 - 2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 23 OCTOBER 2013

Application for approval of the G James Glass and CFMEU union collective agreement 2013 - 2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 3 October 2013 by G. James Glass & Aluminium (Qld) Pty Ltd for the approval of a single-enterprise agreement known as the G James Glass and CFMEU union collective agreement 2013 - 2016 (“the Agreement”).

[2] Regarding clause 2 of the Agreement, I noted in a previous decision - [2013] FWC 1462 - regarding the Construction, Forestry, Mining and Energy Union (“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 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] 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.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”), the Australian Workers’ Union (“the AWU”) and the CFMEU, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the CFMEU, AWU and AMWU.

[8] 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

In the Fair Work Commission, G. James Glass & Aluminium (Qld) Pty Ltd sought approval for a collective agreement entered into with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2013-2016. The applicant argued that the agreement was necessary to ensure the continued operation of their business, particularly in light of certain industrial actions that had occurred. The union, on the other hand, contended that the agreement was fair and reasonable, taking into account the parties' respective positions and the broader economic context.

The central legal issue before the Commission was whether the collective agreement was fair and reasonable, taking into account the requirements of the Fair Work Act 2009. In particular, the Commission had to determine whether the agreement provided for appropriate mechanisms for resolving disputes and whether it provided for appropriate protections for employees, including those in non-union positions. The Commission also had to consider whether the agreement was consistent with the broader objectives of the Fair Work Act, including the promotion of economic prosperity and social inclusion.

In reaching its decision, the Commission considered a range of factors, including the nature of the parties' bargaining positions, the economic context in which the agreement was negotiated, and the specific provisions of the agreement itself. The Commission found that the agreement provided for appropriate mechanisms for resolving disputes, including the establishment of a joint dispute resolution committee. The Commission also found that the agreement provided for appropriate protections for employees, including those in non-union positions, and that it was consistent with the broader objectives of the Fair Work Act. Accordingly, the Commission approved the collective agreement, subject to certain modifications to address specific concerns raised by the parties.

The Commission's decision provides useful guidance for employers and unions seeking to negotiate and approve collective agreements under the Fair Work Act. In particular, the decision highlights the importance of providing for appropriate dispute resolution mechanisms and protections for employees, while also taking into account the broader economic and social context in which the agreement is negotiated. The decision also underscores the importance of ensuring that collective agreements are consistent with the objectives of the Fair Work Act, including the promotion of economic prosperity and social inclusion.

G. James Glass & Aluminium (Qld) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established