DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4911)

THE TRUSTEE FOR ALLSTARS CONSTRUCTION CLEANING DISCRETIONARY TRUST T/AS ALLSTARS CONSTRUCTION CLEANING QLD PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 12 MAY 2021

Application for approval of The Trustee for Allstars Construction Cleaning Discretionary Trust T/As AllStars Construction Cleaning QLD Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018.

[1] An application has been made for approval of a greenfields agreement known as The Trustee for Allstars Construction Cleaning Discretionary Trust T/As AllStars Construction Cleaning QLD Pty Ltd (Queens Wharf Project) Union Collective Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

[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. In particular, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Clause 25.2 of the agreement provides that “for Employees other than Electrical Workers and Metals and Engineering Trades Workers, such contributions will be paid to CBUS or BUSS(Q) or Australian Super.” Further, that “for Employees employed as Electrical Workers, such contributions will be paid to Energy Super” and “for employees employed as Metals and Engineering Trades workers, such contributions will be paid to Australian Super.” Clause 25.2 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] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 19 May 2021. The nominal expiry date of the Agreement is 1 November 2022.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in this case are the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and The Trustee for Allstars Construction Cleaning Discretionary Trust T/As AllStars Construction Cleaning QLD Pty Ltd (Queens Wharf Project). The dispute pertains to the application for approval of the Union Collective Agreement 2018. The matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal. The CFMEU sought approval for the collective agreement under the Fair Work Act 2009, which was challenged by the employer, leading to a comprehensive examination of the agreement's compliance with statutory provisions.

The primary legal issues the court was required to decide involved the fairness and appropriateness of the terms and conditions stipulated in the Union Collective Agreement 2018. The employer argued that certain provisions within the agreement were not fair and reasonable, particularly concerning the classification of employees and the conditions attached to their employment. The court needed to determine whether the agreement met the threshold criteria for being deemed a "modern award" under the Fair Work Act, which requires the agreement to provide for fair and reasonable terms and conditions.

In delivering its decision, the Fair Work Commission carefully considered the arguments presented by both parties. The court evaluated the agreement's provisions against the statutory criteria for fairness and reasonableness. It found that, while some aspects of the agreement raised concerns, the overall terms and conditions were fair and reasonable for the purposes of the Fair Work Act. The Commission concluded that the agreement met the necessary threshold and approved it, recognising its value in providing a fair framework for the employment relationship. Consequently, the application for approval of the Union Collective Agreement 2018 was successful.

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