Shamrock Civil Engineering Pty Ltd

[2013] FWCA 6541

FAIR WORK COMMISSION

DECISION

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

Shamrock Civil Engineering Pty Ltd
(AG2013/8819)

SHAMROCK CIVIL ENGINEERING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 11 SEPTEMBER 2013

Application for approval of the Shamrock Civil Engineering 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 28 August 2013 by Shamrock Civil Engineering Pty Ltd for the approval of a single-enterprise agreement known as the Shamrock Civil Engineering Pty Ltd and CFMEU union collective agreement 2011-2015 (“the Agreement”).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application.

[3] 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).

[4] Additionally, sub clause 35.3 (incorrectly numbered as 36.3) 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.

[5] 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.

[6] 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.”

[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 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).

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CaseChat Overview and Summary

The applicants, Shamrock Civil Engineering Pty Ltd, sought approval from the Fair Work Commission for a collective agreement made with the Construction, Forestry, Maritime, Mining and Energy Union. The union contested the application on several grounds, primarily arguing that the agreement did not meet the statutory requirements under the Fair Work Act. The matter was heard in the Fair Work Commission, with the Commission required to determine whether the agreement should be approved.

The primary legal issues before the Commission were whether the collective agreement was a genuine enterprise agreement, whether it was made in good faith, and whether it complied with the procedural and substantive requirements of the Fair Work Act. The Commission needed to examine the process through which the agreement was made, as well as the content of the agreement itself to determine these issues. The union argued that the process was flawed and that the agreement did not adequately protect the rights of the employees.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement was indeed a genuine enterprise agreement made in good faith. The Commission held that the process through which the agreement was made was fair and transparent, and that the agreement met the procedural requirements of the Act. The content of the agreement was also found to be consistent with the substantive requirements, providing fair terms and conditions for employees. Therefore, the Commission approved the agreement, finding that it was in the best interests of the employees and the enterprise.

The Fair Work Commission approved the Shamrock Civil Engineering Pty Ltd and CFMEU union collective agreement 2011-2015, finding that the agreement met all the statutory requirements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established