DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5715)

REDWOOD CONSTRUCTION SERVICES 7 PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 2 JULY 2021

Application for approval of the Redwood Construction Services 7 Pty Ltd and CFMEU Union Collective Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as the Redwood Construction Services 7 Pty Ltd 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] 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.

[4] Clause 32.1 of the agreement provides that “it is agreed that the default fund under this agreement 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 July 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union for approval of the Redwood Construction Services 7 Pty Ltd and CFMEU Union Collective Agreement 2020-2022. The application was made under the Fair Work Act 2009, seeking the Commission's approval that the agreement constituted a "registered agreement" as defined in the Act. The agreement was contested by Redwood Construction Services 7 Pty Ltd, which raised objections on several grounds, including the assertion that the agreement was not fairly and reasonably negotiated, and that certain provisions were contrary to public policy.

The primary legal issues for the Commission to address were whether the agreement had been fairly and reasonably negotiated and whether any of its provisions were contrary to public policy. In determining these issues, the Commission considered the evidence presented by both parties, including the negotiation process, the terms of the agreement, and the arguments advanced by the objecting party. The Commission also had to consider the broader public interest and the role of industrial relations law in maintaining a fair and balanced industrial relations system.

After careful consideration of the evidence and arguments, the Commission found that the agreement had been fairly and reasonably negotiated and that none of its provisions were contrary to public policy. The Commission noted that the negotiation process had been thorough and that both parties had engaged in good faith throughout. The Commission also found that the terms of the agreement were reasonable and in line with industry standards, and that any concerns raised by the objecting party were either addressed in the agreement or did not constitute a valid objection under the Act. Accordingly, the Commission approved the agreement as a registered agreement.

As a result of the Commission's decision, the Redwood Construction Services 7 Pty Ltd and CFMEU Union Collective Agreement 2020-2022 was approved as a registered agreement under the Fair Work Act 2009. The agreement will now govern the employment conditions of the employees covered by the agreement for the duration of its term, subject to any variations or modifications that may be agreed upon by the parties or determined by a court or tribunal.

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