DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4984)

KPI SERVICES (QLD) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 17 MAY 2021

Application for approval of the KPI Services (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 KPI Services (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 24 May 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a collective agreement between KPI Services (QLD) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union for the period 2020-2022. The Commission was required to assess whether the agreement complied with the provisions of the Fair Work Act 2009, ensuring that it was a bona fide agreement, free from any unfair content that would contravene the act's objectives. The applicant, KPI Services, sought the Commission's approval of the collective agreement to ensure its enforceability and compliance with the statutory framework.

The primary legal issues before the Commission involved determining whether the collective agreement met the requirements of a "good faith" agreement, as outlined in the Fair Work Act. This included assessing whether the agreement contained any provisions that were contrary to the objects of the act, such as provisions that would undermine the rights of employees or create undue disadvantages. Additionally, the Commission needed to consider whether the agreement had been made in good faith and whether it was in the best interests of the employees involved. The Commission was also required to examine the bargaining process to ensure it was conducted fairly and without coercion.

In its decision, the Commission found that the collective agreement was made in good faith and contained no unfair content that would contravene the objectives of the Fair Work Act. The Commission noted that the agreement had been negotiated fairly and without any undue pressure or coercion, and it was in the best interests of the employees. The Commission concluded that the agreement met the requirements of a bona fide agreement and was therefore approved for the specified period. The Commission also highlighted the importance of the bargaining process and the need for parties to engage in good faith negotiations to ensure the agreement's enforceability and compliance with the act.

The Commission's final orders were that the collective agreement between KPI Services and the Construction, Forestry, Maritime, Mining and Energy Union for the period 2020-2022 be approved, subject to the terms and conditions outlined in the agreement. The Commission emphasised the importance of the parties continuing to engage in good faith negotiations and ensuring that any future agreements complied with the Fair Work Act. The approval of the agreement allows it to be enforced as a binding contract between the parties, providing certainty and stability in the workplace for the duration of the agreement.

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