DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5219)

X-CEL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 1 JUNE 2021

Application for approval of the X-Cel Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as the X-Cel 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 8 June 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the X-Cel Pty Ltd and Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Union Collective Agreement 2020-2022. The parties presented arguments concerning the enforceability of certain provisions within the collective agreement. The Commission was tasked with determining whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009.

The legal issues before the Commission primarily revolved around the interpretation and application of relevant sections of the Fair Work Act and the Fair Work Regulations 2009. The Commission had to consider whether the collective agreement contained provisions that were contrary to the objectives of the Act, and whether the agreement was consistent with the national minimum terms and conditions as prescribed by the Fair Work Act. Additionally, the Commission assessed whether the agreement provided for appropriate dispute resolution mechanisms and whether it was likely to promote harmonious, productive, and cooperative workplace relationships.

In its decision, the Commission examined the provisions of the collective agreement in detail. It found that while the agreement contained some provisions that were not in line with the national minimum terms and conditions, these could be severed without rendering the agreement ineffective as a whole. The Commission also determined that the agreement included adequate dispute resolution mechanisms and that, overall, it was likely to promote harmonious workplace relationships. Consequently, the Commission approved the collective agreement, subject to the severance of certain provisions.

The Fair Work Commission's final order was to approve the X-Cel Pty Ltd and CFMEU Union Collective Agreement 2020-2022, with the condition that specific provisions inconsistent with the national minimum terms and conditions be severed. The Commission directed the parties to provide a copy of the approved agreement to the Registrar within 14 days of the decision date. This decision ensures that the agreement is enforceable while also safeguarding the interests of the employees and the employer.

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