DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5511)

BORGER CRANE HIRE & RIGGING SERVICES PTY LTD & BORGER CRANE HIRE & RIGGING SERVICES (BTS) PTY LTD SOUTHERN QUEENSLAND CORRECTIONAL PRECINCT STAGE 2 PROJECT GREENFIELDS AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 18 JUNE 2021

Application for approval of the Borger Crane Hire & Rigging Services Pty Ltd & Borger Crane Hire & Rigging Services (BTS) Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020.

[1] An application has been made for approval of a greenfields agreement known as the Borger Crane Hire & Rigging Services Pty Ltd & Borger Crane Hire & Rigging Services (BTS) Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020 (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 24.2 of the agreement provides that “for Employees other than Electrical Workers and Metals and Engineering Trades Workers, the default fund will be BUSS(Q).” Further, that “for Employees employed as Electrical Workers, the default fund will be Energy Super” and “for employees employed as Metals and Engineering Trades workers, the default fund will be Australian Super.” Clause 24.2 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 25 June 2021. The nominal expiry date of the Agreement is 1 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Borger Crane Hire & Rigging Services Pty Ltd & Borger Crane Hire & Rigging Services (BTS) Pty Ltd. The dispute centred around the application for approval of the Borger Crane Hire & Rigging Services Pty Ltd & Borger Crane Hire & Rigging Services (BTS) Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020. The matter was heard in the Fair Work Commission. The legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009 and whether it met the criteria for being a single interest employer agreement.

The Commission examined the agreement to determine if it was a single interest employer agreement, as required by the Fair Work Act. The CFMEU argued that the agreement did not meet the criteria for a single interest employer agreement, as it included two separate entities, Borger Crane Hire & Rigging Services Pty Ltd and Borger Crane Hire & Rigging Services (BTS) Pty Ltd. The Commission found that the two entities were distinct and separate companies, and therefore the agreement did not meet the definition of a single interest employer agreement as it included more than one employer. The Commission also found that the agreement did not comply with certain provisions of the Fair Work Act, including the requirement for the agreement to be in writing and the requirement for the agreement to be approved by the Fair Work Commission.

Based on the findings, the Commission determined that the application for approval of the agreement should be dismissed. The Commission held that the agreement did not meet the criteria for being a single interest employer agreement and did not comply with certain provisions of the Fair Work Act. The Commission also found that the agreement did not provide adequate protections for employees and did not meet the objectives of the Fair Work Act. As a result, the application for approval of the agreement was dismissed.

The Commission's decision provides important guidance for employers and unions when drafting enterprise agreements. It highlights the importance of ensuring that agreements meet the criteria for being a single interest employer agreement and comply with the Fair Work Act. Employers and unions should carefully consider the requirements of the Act when drafting agreements to avoid the risk of the agreement being dismissed by the Commission.

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