DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5188)

WADSWORTH CONTRACTING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 28 MAY 2021

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

[1] An application has been made for approval of an enterprise agreement known as the Wadsworth Contracting 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 4 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the Wadsworth Contracting Pty Ltd and CFMEU Union Collective Agreement 2020‒2022. Wadsworth Contracting Pty Ltd, a small business employing fewer than 15 employees, challenged the application on various grounds, including that the agreement did not comply with statutory requirements and that it was not genuinely negotiated.

The primary legal issue the Commission had to decide was whether the agreement met the criteria for approval under the Fair Work Act 2009. This included whether the agreement was genuinely negotiated, free from coercion and did not have any terms that were contrary to public policy. The Commission also had to consider the applicability of the small business exemption provisions under the Act.

The Fair Work Commission found that the agreement was genuinely negotiated and did not contain any terms that were contrary to public policy or statutory requirements. The Commission noted that while Wadsworth Contracting Pty Ltd was a small business, it had engaged in the negotiation process and had the opportunity to seek legal advice. The Commission held that the agreement was consistent with the provisions of the Act and did not contravene any public policy considerations. As a result, the Commission approved the agreement.

The Fair Work Commission approved the Wadsworth Contracting Pty Ltd and CFMEU Union Collective Agreement 2020‒2022, dismissing the small business's objections. The Commission found that the agreement was genuinely negotiated and did not contain any terms that were contrary to public policy or statutory requirements.

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