DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4844)

UNITED CLEAN COMPANY PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 7 MAY 2021

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

[1] An application has been made for approval of an enterprise agreement known as the United Clean Company 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 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 14 May 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the United Clean Company Pty Ltd and CFMEU Union Collective Agreement 2020‒2022. The union and the company are parties to an existing agreement which is due to expire on 31 December 2020. The application was heard by the Fair Work Commission (FWC), and the decision was handed down by Deputy President J.A. Murphy. The CFMEU and United Clean Company Pty Ltd sought approval of the terms and conditions of the new collective agreement. The union argued that the new agreement would provide for better terms and conditions of employment for its members. The company argued that the proposed agreement would be too costly, and would negatively impact its business.

The FWC was required to determine whether the terms of the new agreement were appropriate for approval. This required the FWC to consider whether the agreement provided for fair and reasonable terms and conditions, and whether it would have an adverse effect on the company's ability to operate its business. The FWC found that the proposed agreement provided for fair and reasonable terms and conditions for the employees, and that the agreement would not have an adverse effect on the company's ability to operate its business. The FWC was satisfied that the agreement provided for a fair and reasonable mechanism for resolving disputes between the parties, and that it would provide for better terms and conditions of employment for the employees.

The FWC approved the terms and conditions of the United Clean Company Pty Ltd and CFMEU Union Collective Agreement 2020‒2022. The union and the company are now bound by the terms of the new agreement, which will commence on 1 January 2021. The FWC noted that the agreement provides for a mechanism for resolving disputes between the parties, and that it provides for better terms and conditions of employment for the employees. The FWC was satisfied that the agreement was appropriate for approval, and that it would not have an adverse effect on the company's ability to operate its business.

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