DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5243)

ADFINIS 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 Adfinis Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as the Adfinis 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 the approval of a collective agreement between Adfinis Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2020 to 2022. The primary dispute centred around whether the agreement contained provisions that were contrary to the public interest or inconsistent with the Fair Work Act 2009.

The legal issues before the court included whether certain provisions within the collective agreement, particularly those relating to the regulation of working conditions and the enforcement of union membership, complied with the statutory framework and the overarching principles of fairness and equity in employment relations. Additionally, the court needed to assess whether the agreement's provisions adequately safeguarded the rights of non-union employees and whether they contravened the principles of freedom of association and collective bargaining.

In evaluating the application, the court considered the balance between the rights of the union to negotiate on behalf of its members and the rights of individual employees, including those not affiliated with the union. The court found that while the agreement broadly adhered to the requirements of the Fair Work Act, certain provisions required modification to ensure they did not unduly restrict the rights of non-union employees or impose unfair conditions. Consequently, the court approved the agreement with several modifications, ensuring it met the necessary standards of fairness and compliance with the 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