DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5788)

THE TRUSTEE FOR HAMILTON AND WALKER FAMILY TRUST T/AS ACE HIGH INSTALLATIONS AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 7 JULY 2021

Application for approval of The Trustee for Hamilton and Walker Family Trust T/As Ace High Installations and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of a greenfields agreement known as The Trustee for Hamilton and Walker Family Trust T/As Ace High Installations and CFMEU Union Collective Agreement 2020‒2022 (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 the Construction, Forestry, Maritime, Mining and Energy Union.

[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 the Construction, Forestry, Maritime, Mining and Energy Union 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 32.1 of the agreement provides that “it is agreed that the default fund under this agreement shall be BussQ.”  Clause 32.1 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 the Construction, Forestry, Maritime, Mining and Energy Union 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 14 July 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for approval of The Trustee for Hamilton and Walker Family Trust T/As Ace High Installations and CFMEU Union Collective Agreement 2020‒2022, the Fair Work Commission was tasked with determining whether the proposed agreement met the statutory requirements under the Fair Work Act 2009. The dispute arose between The Trustee for Hamilton and Walker Family Trust T/As Ace High Installations and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The primary concern was whether the agreement provided for the proper operation of the enterprise, the fair treatment of employees, and compliance with all legislative obligations.

The legal issues before the court centred on the interpretation and application of the Fair Work Act, particularly the provisions relating to the approval of enterprise agreements. The court had to consider whether the proposed agreement adhered to the statutory minimum standards set forth in the Act, including provisions on minimum wages, working conditions, and procedural fairness. Additionally, the court examined the process by which the agreement was negotiated and the extent to which it facilitated the proper operation of the enterprise.

The court found that the proposed agreement was compliant with the statutory requirements. It met the criteria for proper operation of the enterprise and ensured fair treatment of employees. The court also noted that the agreement contained all necessary procedural fairness provisions and adhered to the minimum standards for wages and working conditions. The court was satisfied that the negotiation process was transparent and that the agreement was made in good faith. Consequently, the court approved the proposed agreement, finding it to be in accordance with the provisions of the Fair Work Act.

The court issued orders approving the The Trustee for Hamilton and Walker Family Trust T/As Ace High Installations and CFMEU Union Collective Agreement 2020‒2022. The agreement was declared to be a registered agreement under the Fair Work Act, effective from the date of the court's decision. The court also directed that the agreement be published in accordance with the requirements of the Act.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established