DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5787)

BRISCUT PTY LTD T/AS CUT AND CORE QLD AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 6 JULY 2021

Application for approval of the Briscut Pty Ltd T/As Cut and Core QLD and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as the Briscut Pty Ltd T/As Cut and Core QLD 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). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[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.

[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] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 July 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of a collective agreement between Briscut Pty Ltd trading as Cut and Core QLD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the terms and conditions of employment as stipulated in the proposed collective agreement for the period 2020‒2022. The Fair Work Commission was tasked with reviewing the agreement to ensure compliance with the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed terms and conditions in the collective agreement met the statutory requirements for approval, including fairness and compliance with relevant industrial instruments and the general principles of enterprise bargaining. The Commission had to assess whether the agreement provided for the fair and efficient operation of the enterprise and if it adhered to the requirements of good faith bargaining and minimum workplace standards.

The Commission meticulously examined the contents of the agreement, considering submissions from both parties. It evaluated the fairness of the proposed terms and conditions, ensuring that they provided for the efficient operation of the enterprise and were not unduly harsh, unreasonable, or discriminatory. The Commission also considered the nature of the industry and the specific circumstances of the enterprise. Ultimately, the Commission was satisfied that the agreement met the necessary criteria for approval, balancing the rights and interests of both the employer and the union.

The Fair Work Commission approved the Briscut Pty Ltd T/As Cut and Core QLD and CFMEU Union Collective Agreement 2020‒2022, finding it to be fair and compliant with the relevant provisions of the Fair Work Act. The Commission's decision was based on the comprehensive analysis of the agreement's terms and conditions, confirming that they were in line with the statutory requirements for enterprise agreements.

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