DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5006)

KEYBUILD SERVICES PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 18 MAY 2021

Application for approval of the Keybuild Services Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

[1] An application has been made for approval of an enterprise agreement known as the Keybuild Services 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 25 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 parties involved in the matter were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Keybuild Services Pty Ltd, which sought approval of a collective agreement between them. The dispute was brought before the Fair Work Commission, an Australian industrial relations tribunal. The applicants sought to have the proposed collective agreement, which spanned the years 2020 to 2022, approved and registered under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the collective agreement complied with the statutory requirements for registration and approval. This included examining whether the agreement contained the necessary minimum terms and conditions, was made in good faith, and did not contravene any provisions of the Fair Work Act. The CFMEU and Keybuild Services argued that the agreement was fair and reasonable, while no other parties contested the agreement.

The Fair Work Commission, in its decision, found that the collective agreement did indeed meet the statutory requirements. The Commission noted that the agreement was made in good faith, included all necessary minimum terms and conditions, and did not contain any provisions that were contrary to the Fair Work Act. The Commission was satisfied that the agreement was fair and reasonable, taking into account the interests of both parties and the broader community. As such, the Commission approved and registered the Keybuild Services Pty Ltd and CFMEU Union Collective Agreement 2020‒2022.

As a result of the Commission's decision, the collective agreement between Keybuild Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union for the period 2020 to 2022 was formally approved and registered. This allows the agreement to be legally binding on the parties and enforceable under the Fair Work Act. The decision sets a precedent for similar agreements in the future, providing guidance on the requirements for approval and registration of 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