DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5043)

RICHARDSON INSTALLATIONS 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 Richardson Installations Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as the Richardson Installations 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

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) filed an application for approval of the Richardson Installations Pty Ltd and CFMEU Union Collective Agreement 2020‒2022. The Fair Work Commission was the tribunal that heard the application. The agreement in question had been reached between the CFMEU and Richardson Installations Pty Ltd, a company operating within the construction industry. The dispute centred around the terms and conditions of employment outlined in the collective agreement, and whether these terms met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the collective agreement satisfied the criteria for approval as set out in section 233 of the Fair Work Act. Specifically, the Commission had to determine if the agreement provided for the proper regulation of the working relationship between the parties, and whether it was made in good faith and without coercion. The CFMEU argued that the agreement was fair and equitable, and that it had been negotiated in good faith. Conversely, there was contention about certain provisions which raised concerns about potential implications for employee rights and operational flexibility.

After carefully examining the collective agreement, the Commission found that it largely met the legislative requirements for approval. The agreement was comprehensive, covering a wide range of employment terms and conditions. The Commission concluded that the agreement was made in good faith and did not contain any provisions that would unduly restrict the operational freedom of Richardson Installations Pty Ltd. The CFMEU demonstrated that the agreement was necessary to protect the interests of its members, and that it did not impose unreasonable constraints on the employer. Based on these findings, the Commission approved the collective agreement, subject to specific conditions that were deemed necessary to ensure its compliance with the Fair Work Act.

The final orders of the Commission included the approval of the collective agreement with certain modifications to ensure compliance with the Fair Work Act. The Commission mandated that any disputes arising from the interpretation or application of the agreement must be resolved through the agreed dispute resolution process. Additionally, the Commission required regular reporting on the implementation of the agreement to ensure ongoing compliance and to address any emerging issues. The decision provided clarity on the terms of employment and the regulatory framework governing the working relationship between Richardson Installations Pty Ltd and the CFMEU.

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