Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 3687

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2021/5661)

PKF Pty Ltd T/As PKF QLD and CFMEU Union Collective Agreement 2020-2022

Building, metal and civil construction industries
Commissioner Johns	SYDNEY, 30 JUNE 2021

Application for approval of the PKF Pty Ltd T/As PKF QLD and CFMEU Union Collective Agreement 2020-2022.

An application has been made for approval of an enterprise agreement known as the PKF Pty Ltd T/As PKF 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.

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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 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

The case before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and PKF Pty Ltd, trading as PKF QLD. The parties sought approval for a collective agreement set for the period 2020-2022. The application for approval was lodged with the Fair Work Commission, which was tasked with ensuring that the proposed agreement met the necessary legal standards under the Fair Work Act 2009.

The central legal issues before the Commission centred on whether the proposed collective agreement complied with the statutory requirements under the Fair Work Act. Specifically, the Commission needed to assess if the agreement provided for minimum entitlements, dealt with terms and conditions of employment in a fair and reasonable manner, and adhered to the statutory minimum standards. Additionally, the Commission considered whether the agreement facilitated or hindered the making of future agreements and whether it was in the best interests of the employees covered by the agreement.

In delivering its decision, the Fair Work Commission thoroughly examined the terms of the proposed collective agreement. It found that the agreement included provisions that met the statutory minimum entitlements and provided for terms and conditions that were fair and reasonable. The Commission also concluded that the agreement did not impede the making of future agreements and was in the best interests of the employees. Therefore, the Commission approved the application for the collective agreement, finding it compliant with the legislative framework.

The final orders of the Commission included the approval of the PKF Pty Ltd T/As PKF QLD and CFMEU Union Collective Agreement 2020-2022, subject to the terms and conditions specified within the agreement. The approval ensures that the agreement will be legally binding and enforceable for the specified period, providing a framework for the employment relationship between PKF QLD and the unionised workforce.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established