DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4881)

SET TILING PTY LTD (STONEMASONRY) AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 10 MAY 2021

Application for approval of the Set Tiling Pty Ltd (Stonemasonry) and CFMEU Union Collective Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as the Set Tiling Pty Ltd (Stonemasonry) 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 47.1 of the agreement provides that “it is agreed that the default fund under this agreement shall be BussQ.” Clause 47.1 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 17 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 court involved an application for the approval of a collective agreement between Set Tiling Pty Ltd, a stonemasonry company, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement, which spanned from 2020 to 2022, was submitted to the Fair Work Commission for endorsement under the Fair Work Act 2009. The applicant, Set Tiling Pty Ltd, sought the court's affirmation of the agreement, which outlined terms and conditions of employment for the workers.

The legal issues at the heart of this case revolved around whether the collective agreement complied with the statutory requirements of the Fair Work Act. Specifically, the court needed to determine if the agreement met the criteria for good faith bargaining and whether it contained terms that were consistent with the provisions of the Act. It was also necessary to assess whether the agreement provided for fair and reasonable terms and conditions that were not detrimental to the parties involved.

The court, after thorough examination of the agreement, found that it met the requisite standards for approval. The terms were deemed to be the product of good faith negotiations between the parties. The agreement was considered fair and reasonable, taking into account the nature of the industry and the economic context of the period. The court also noted that the agreement did not include any terms that were contrary to the overarching principles of the Act. Consequently, the court granted the application for approval, affirming the collective agreement as compliant with the statutory framework. This decision allowed the agreement to come into effect, binding both Set Tiling Pty Ltd and the CFMEU to the terms outlined within it.

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