Austunnel (VIC) Pty Ltd

[2021] FWCA 4412

[2021] FWCA 4412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Austunnel (VIC) Pty Ltd
(AG2021/6202)

MWU AND AUSTUNNEL (VIC) PTY LTD METAL ENGINEERING MELBOURNE METRO TUNNEL AND STATIONS PROJECT AGREEMENT 2018 - 2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 23 JULY 2021

Application for approval of the AMWU and Austunnel (VIC) Pty Ltd Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2018-2022.

[1] An application has been made for approval of a greenfields agreement known as the AMWU and Austunnel (VIC) Pty Ltd Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by Austunnel (VIC) Pty Ltd.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. In particular, I am satisfied that “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Clause 43.1 of the Agreement provides that “The Employer shall be a participating employer in the Construction and Building Unions Superannuation Scheme (Cbus) and all employees (including apprentices shall be enrolled in C+BUS and be entitled to superannuation benefits in accordance with the terms of C+BUS.” Clause 43.1 appears inconsistent with the Treasury Laws Amendment (Your Superannuation, Your Choice) Act 2020 (Super Choice Act). The Super Choice Act amended the Superannuation Guarantee (Administration) Act 1992 (SGA Act). Under the Super Choice Act (and the amended SGA Act) a clause in a workplace determination or enterprise agreement that restricts an employee’s choice of a superannuation is not enforceable if the agreement is made after 1 January 2021.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 30 July 2021. The nominal expiry date of the Agreement is 31 October 2022.

COMMISSIONER

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