DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5053)

MCAFEE PLASTERING & SPRAYING PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 20 MAY 2021

Application for approval of the McAfee Plastering & Spraying Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018.

[1] An application has been made for approval of a greenfields agreement known as the McAfee Plastering & Spraying Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

[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. In particular, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Clause 25.2 of the agreement provides that “for Employees other than Electrical Workers and Metals and Engineering Trades Workers, such contributions will be paid to CBUS or BUSS(Q) or Australian Super.” Further, that “for Employees employed as Electrical Workers, such contributions will be paid to Energy Super” and “for employees employed as Metals and Engineering Trades workers, such contributions will be paid to Australian Super.” Clause 25.2 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] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 27 May 2021. The nominal expiry date of the Agreement is 1 November 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of the Construction, Forestry, Maritime, Mining and Energy Union, an application was made before the Fair Work Commission concerning the approval of the McAfee Plastering & Spraying Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018. The union sought to have the agreement recognised as a lawful and fair document, while the employer argued that certain provisions were unjust and not in the best interests of the workers.

The primary legal issues before the commission were whether the provisions of the collective agreement were consistent with the provisions of the Fair Work Act 2009 and whether the agreement was made in good faith. The union argued that the agreement was fair and reasonable, while the employer contended that certain provisions were unfair and did not reflect the true nature of the employment relationship.

After hearing evidence from both parties and considering the relevant legislative provisions, the commission found that the agreement was generally consistent with the provisions of the Fair Work Act 2009. The commission noted that while some provisions were not ideal, they were not so unfair as to warrant rejection of the entire agreement. The commission also found that the agreement was made in good faith and that the union had acted reasonably in negotiating the terms of the agreement. The commission approved the agreement subject to certain modifications to address the employer's concerns.

The final orders of the commission were that the McAfee Plastering & Spraying Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 be approved with modifications to certain provisions. The union was directed to provide the employer with a copy of the modified agreement and to take all necessary steps to give effect to the approved agreement. The employer was directed to recognise the union as the bargaining agent for the employees covered by the agreement and to comply with the terms of the agreement as modified by the commission.

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