DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5403)

MATTHEW JENNINGS T/AS LENWILL APPLIED FINISHES AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

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

Application for approval of the Matthew Jennings T/As Lenwill Applied Finishes and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of a greenfields agreement known as the Matthew Jennings T/As Lenwill Applied Finishes 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants in this matter are the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Matthew Jennings trading as Lenwill Applied Finishes (Lenwill). The applicants sought approval for a collective agreement which would cover the period 2020 to 2022. The dispute was heard in the Fair Work Commission (FWC), an Australian federal statutory tribunal with jurisdiction over employment-related matters. The applicants sought approval of the collective agreement under section 235 of the Fair Work Act 2009. The employer opposed the application, arguing that the agreement was not in the best interests of the employees because it contained provisions that were not consistent with the modern award.

The primary legal issue before the FWC was whether the collective agreement was consistent with the modern award and therefore could be approved under section 235 of the Fair Work Act. The employer argued that the agreement contained provisions which were inconsistent with the modern award and which did not represent the best interests of the employees. The applicants argued that the provisions were necessary and appropriate and were in the best interests of the employees. The FWC considered the provisions of the modern award and the provisions of the collective agreement, as well as submissions from both parties. The FWC found that the provisions of the collective agreement were not inconsistent with the modern award and were in the best interests of the employees. The FWC approved the collective agreement.

The FWC took into account the nature of the industry, the bargaining power of the parties, and the interests of the employees in making its decision. The FWC found that the provisions of the agreement were reasonable and appropriate in the circumstances and that they were in the best interests of the employees. The employer's opposition to the agreement was rejected. The FWC approved the collective agreement in accordance with section 235 of the Fair Work Act.

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