DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5037)

THE TRUSTEE FOR THE APPLIKOTE UNIT TRUST T/AS APPLIKOTE (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 19 MAY 2021

Application for approval of The Trustee for the Applikote Unit Trust T/As Applikote (Qld) Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as The Trustee for the Applikote Unit Trust T/As Applikote (Qld) 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 26 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 an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of a union collective agreement. The applicant sought approval for the agreement between the union and The Trustee for the Applikote Unit Trust trading as Applikote (Qld) Pty Ltd, which covers the period from 2020 to 2022. The application was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the collective agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was in the public interest and did not undermine the protection of employees' rights.

The Commission examined the terms of the agreement, the bargaining process, and the potential impact on employees and the broader community. It considered the balance between the rights of employers and employees, as well as the broader economic and social implications of the agreement. The Commission also took into account submissions from various stakeholders, including the parties involved in the agreement and other interested parties. The Commission found that the agreement met the criteria for approval. It was satisfied that the agreement was in the public interest and did not undermine the protection of employees' rights. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment, and that the bargaining process was conducted in good faith.

The Commission approved the collective agreement, subject to certain conditions and modifications. The final orders included the approval of the agreement, with specific provisions to address any concerns raised during the application process. The decision highlights the importance of balancing the interests of employers and employees, and the role of the Commission in ensuring that collective agreements are in the public interest. The outcome of this case provides guidance for future applications for approval of union collective agreements.

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