DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4808)

NORTH AUSTRALIAN CONTRACTING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020‒2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 5 MAY 2021

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

[1] An application has been made for approval of an enterprise agreement known as the North Australian Contracting 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 12 May 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of an application for approval of the North Australian Contracting Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union Collective Agreement 2020‒2022, the Fair Work Commission heard arguments from both parties. The North Australian Contracting Pty Ltd sought approval for the collective agreement which was opposed by the CFMEU. The dispute centred on several provisions within the agreement, particularly those related to the terms of employment, wages, and conditions of work. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issues revolved around the compliance of the agreement with the Fair Work Act, including whether the agreement met the criteria for being a registered agreement, and whether it contained all the mandatory terms prescribed by the Act. The Commission also had to consider if the agreement provided for proper dispute resolution mechanisms and if it was fair and reasonable in all its terms. The opposition raised specific concerns about certain clauses that they believed did not align with the legislative framework or were overly burdensome on the employer.

In its decision, the Commission examined each contested clause in detail. It found that while most provisions were in line with the Act, a few clauses needed modification to ensure compliance with mandatory terms. The Commission directed the parties to amend these clauses to reflect the required standards. After the necessary amendments, the Commission concluded that the agreement was fair and reasonable, and it approved the collective agreement. The Commission's decision underscored the importance of balancing the rights and obligations of both employers and employees while ensuring that the agreement promotes a productive and fair workplace environment.

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