DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5402)

SAFE-T-PRO SERVICES (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 11 JUNE 2021

Application for approval of the Safe-T-Pro Services (QLD) Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of a greenfields agreement known as the Safe-T-Pro Services (QLD) 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). 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 18 June 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for approval of the Safe-T-Pro Services (QLD) Pty Ltd and CFMEU Union Collective Agreement 2020‒2022. Safe-T-Pro Services (QLD) Pty Ltd opposed the approval on the basis that the agreement failed to meet the requirements of section 230 of the Fair Work Act 2009 as it did not provide for a genuine attempt to negotiate in good faith, and was not made in the spirit of cooperative workplace relations. The dispute centred on the process by which the agreement was negotiated and whether the employer had engaged in good faith negotiations as required by law.

The Commission considered the evidence presented by both parties and examined the negotiation process and the terms of the agreement. It was noted that the employer had made a genuine attempt to negotiate in good faith, but there were issues with the process which led to the union withdrawing from negotiations and lodging the application for approval. The Commission found that the employer's actions, while not ideal, did not amount to a failure to negotiate in good faith or a breach of the spirit of cooperative workplace relations. The Commission approved the agreement, noting that the terms were fair and reasonable and provided for a positive workplace culture.

The Commission's decision was based on a detailed analysis of the negotiation process and the terms of the agreement. The employer's actions, while not perfect, did not rise to the level of a failure to negotiate in good faith or a breach of the spirit of cooperative workplace relations. The Commission found that the agreement provided for a positive workplace culture and was in the best interests of the employees. The approval of the agreement ensures that the parties can now move forward with the implementation of the agreement and the continuation of a productive working relationship.

The Fair Work Commission approved the Safe-T-Pro Services (QLD) Pty Ltd and CFMEU Union Collective Agreement 2020‒2022. The decision highlights the importance of good faith negotiations and the spirit of cooperative workplace relations in the negotiation and approval of enterprise agreements. The Commission's analysis of the negotiation process and the terms of the agreement provides useful guidance for employers and unions in future negotiations.

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