DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5079)

LACK GROUP CONSTRUCTIONS TRAFFIC PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 24 MAY 2021

Application for approval of the Lack Group Constructions Traffic Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as the Lack Group Constructions Traffic 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 31 May 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for a proposed collective agreement with Lack Group Constructions Traffic Pty Ltd. The Fair Work Commission (FWC) was tasked with reviewing and approving the agreement as it fell within the scope of its regulatory powers under the Fair Work Act 2009. The applicant union and the employer submitted their collective agreement to the FWC for approval. The primary legal issue before the FWC was to determine whether the proposed agreement complied with the statutory requirements set forth in the Fair Work Act and other relevant industrial instruments. The FWC had to examine the agreement's provisions to ensure that it did not undermine the safety, health, and welfare of employees and that it adhered to the principles of procedural fairness.

The FWC found that the proposed agreement was generally consistent with the requirements of the Fair Work Act and did not contain provisions that would undermine the safety, health, and welfare of employees. The FWC approved the collective agreement with some modifications, as it found that the agreement complied with the relevant statutory provisions and industrial instruments. The FWC emphasised the importance of ensuring that any collective agreement approved by the Commission does not contain provisions that would undermine the safety, health, and welfare of employees and must adhere to the principles of procedural fairness. The FWC also noted the need for collective agreements to be in line with the broader objectives of the Fair Work Act, which includes promoting cooperative and productive workplace relations.

The FWC approved the collective agreement with certain modifications, including the removal of provisions that would undermine the safety, health, and welfare of employees and ensuring that the agreement adhered to the principles of procedural fairness. The FWC also noted the importance of collective agreements promoting cooperative and productive workplace relations, as well as aligning with the broader objectives of the Fair Work Act. The FWC's decision provides guidance to employers and unions on the types of provisions that may be included in a collective agreement and the importance of ensuring that such agreements comply with the statutory requirements set forth in the Fair Work Act and other relevant industrial instruments.

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