DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4955)

DELTA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 14 MAY 2021

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

[1] An application has been made for approval of an enterprise agreement known as the Delta 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 21 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 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of a collective agreement with Delta Pty Ltd. The dispute centred on whether the terms and conditions proposed in the agreement complied with the relevant provisions of the Fair Work Act 2009. The Commission was required to assess the fairness of the proposed agreement under the framework established by the legislation.

The primary legal issue before the Commission was to determine whether the collective agreement met the criteria for approval as set out in the Fair Work Act. This involved examining whether the agreement provided for terms and conditions of employment that were fair and reasonable, taking into account the broader economic environment and the need to promote high levels of employment, productivity, and industrial peace. The Commission had to consider the balance of interests between the employer and the employees, as well as the implications for broader industrial relations.

In assessing the application, the Commission considered the evidence and submissions from both parties, focusing on the economic context and the specific terms of the proposed agreement. The Commission noted the union’s arguments regarding the need for certain conditions to ensure fair wages and working conditions, while also considering the employer’s perspective on the impact of the proposed terms on their business operations. The Commission concluded that the agreement contained terms that were fair and reasonable, taking into account all relevant factors. The Commission was satisfied that the agreement provided a balanced approach that promoted both the interests of the employees and the employer, and was consistent with the objectives of the Fair Work Act.

The Fair Work Commission approved the collective agreement between Delta Pty Ltd and the CFMEU, effective from the specified period. The decision emphasised the importance of achieving a balance between the interests of the employer and employees, while also considering the broader implications for industrial relations and the economy. The Commission's approval was based on the comprehensive assessment of the evidence and the conclusion that the agreement met the statutory requirements for fairness and reasonableness.

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