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austlii:cth/FWCA/2013/7169
procedural. The Agreement is approved and will operate in accordance with s.54 of the Act.
The Fair Work Commission approved a single-enterprise agreement between Regency Balustrade Pty Ltd and the CFMEU. The Senior Deputy President noted that two clauses in the agreement raised concerns about whether they were permitted content under the Fair Work Act: clause 2 (which tried to regulate future agreements) and sub-clause 35.3 (which dealt with contractors and labour hire). These clauses were flagged as potentially not meeting the requirements of the Act. However, the Commission was satisfied that all the necessary legal requirements for approval were met, and the agreement was approved. The decision also clarified how certain clauses about information access and discussions with employees should be read in conjunction with each other and with the Privacy Act.
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2 cited instruments linked from this judgment.
s.185 - Application for approval of a single-enterprise agreement
Construction, Forestry, Mining and Energy Union
REGENCY BALUSTRADE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015
Application for approval of the Regency Balustrade 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 16 September 2013 by the Construction, Forestry, Mining and Energy Union ("the CFMEU") for the approval of a single-enterprise agreement known as the Regency Balustrade 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] For the further avoidance of doubt, I note the following.
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."
[5] 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.
[6] 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.
[7] The Agreement is approved and will operate in accordance with s.54 of the Act.
Printed by authority of the Commonwealth Government Printer
The Agreement is approved and will operate in accordance with s.54 of the Act.