DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5400)

TENSIONED CONCRETE PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 10 JUNE 2021

Application for approval of the Tensioned Concrete Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as the Tensioned Concrete 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] 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] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 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 case before the Fair Work Commission involved an application for the approval of a collective agreement between Tensioned Concrete Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The union sought approval of the proposed agreement which outlined terms and conditions of employment for employees of Tensioned Concrete. The Fair Work Commission, as the body responsible for overseeing the approval of enterprise agreements, was tasked with determining whether the proposed agreement met the necessary criteria under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed collective agreement complied with the procedural and substantive requirements set forth in the Fair Work Act. Procedurally, the Commission had to determine if the agreement was made in accordance with the relevant provisions, including whether it was certified by the Australian Building and Construction Commission. Substantively, the Commission needed to assess whether the terms of the agreement provided for fair and reasonable remuneration and conditions, and whether the agreement was in the interests of the employees covered by it. The Commission also had to ensure that the agreement did not undermine the safety of workers.

In its decision, the Fair Work Commission found that the proposed agreement did comply with both procedural and substantive requirements. The Commission noted that the agreement had been certified by the Australian Building and Construction Commission and that the union had followed the necessary procedures to achieve this. The Commission further found that the terms and conditions of the agreement were fair and reasonable, and that the agreement did not undermine the safety of workers. Given these findings, the Commission approved the collective agreement, confirming that it met all statutory requirements and was in the interests of the employees involved.

The final orders of the Fair Work Commission included the approval of the Tensioned Concrete Pty Ltd and CFMEU Union Collective Agreement 2020‒2022. This decision ensures that the terms of the agreement will be legally binding on both the employer and the employees, providing a clear framework for the employment relationship during the specified period.

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