DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4878)

KELLER PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

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

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

[1] An application has been made for approval of an enterprise agreement known as the Keller 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 17 May 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the Keller Pty Ltd and CFMEU Union Collective Agreement 2020‒2022. The dispute involved the interpretation and application of the Fair Work Act 2009 in relation to the provisions of the collective agreement. The court was tasked with determining whether the agreement met the statutory requirements for approval under the legislation.

The primary legal issues before the court were whether the collective agreement complied with the mandatory provisions of the Fair Work Act, and whether the agreement included terms that were fair and reasonable for the employees and the employer. The court examined the specific terms of the agreement, including those related to wages, hours of work, and other conditions of employment, to assess their compliance with the statutory framework.

The court considered the provisions of the Fair Work Act and the principles of fairness and reasonableness in collective agreements. It concluded that the agreement contained terms that were not compliant with the mandatory provisions of the Act, particularly in relation to the classification of employees and the payment of overtime. However, the court found that the overall agreement was fair and reasonable for the employees and the employer, and approved the collective agreement subject to the correction of the non-compliant terms. The court's decision ensured that the agreement was aligned with the statutory requirements while also balancing the interests of both parties.

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