DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5082)

LACK GROUP CONSTRUCTION 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 Construction 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 Construction 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

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CaseChat Overview and Summary

The case involves the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Lack Group Construction Pty Ltd. The CFMEU sought approval of a proposed collective agreement with Lack Group Construction Pty Ltd for the period 2020–2022. The application was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was in the public interest and whether it complied with the good faith bargaining provisions of the Act.

The Fair Work Commission, in its reasoning, considered the public interest factors outlined in the Fair Work Act, including the impact of the agreement on the broader economy, employment conditions, and the bargaining processes. The Commission also examined whether the agreement was the product of genuine and meaningful negotiations between the parties, as required by the Act. After reviewing the evidence and submissions from both parties, the Commission found that the agreement was in the public interest and had been reached through good faith bargaining. Consequently, the Commission approved the collective agreement, highlighting the importance of such agreements in maintaining fair and effective industrial relations.

The outcome of the case was the approval of the Lack Group Construction Pty Ltd and CFMEU Union Collective Agreement 2020‒2022, recognising the importance of collective bargaining in the context of the Fair Work Act. This decision underscores the Commission's role in ensuring that industrial agreements serve the public interest while upholding the principles of good faith bargaining.

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