DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4469)

TOTAL CONTRACT SERVICES PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 13 APRIL 2021

Application for approval of the Total Contract Services Pty Ltd and CFMEU Union Collective Agreement 2020–2022.

[1] An application has been made for approval of an enterprise agreement known as the Total Contract Services 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 20 April 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 Fair Work Commission involved an application for the approval of the Total Contract Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Collective Agreement 2020–2022. The applicant, Total Contract Services, sought the Commission's approval for the collective agreement, which had been negotiated with the CFMEU. The dispute centred around the terms of the agreement, which included provisions relating to wages, conditions of employment, and dispute resolution mechanisms.

The legal issues before the Commission included whether the agreement met the requirements for approval under the Fair Work Act 2009, specifically whether the agreement complied with the provisions regarding the avoidance of industrial action and the protection of employees' rights. Additionally, the Commission needed to determine whether the agreement provided for a fair and reasonable balance of rights and obligations between the employer and employees, and whether it was consistent with the principles of the Fair Work Act.

The Commission found that the agreement met the requirements for approval under the Act. The Commission considered the provisions of the agreement and found that they provided for a fair and reasonable balance of rights and obligations between the parties. The Commission noted that the agreement included provisions that avoided industrial action and protected employees' rights, and that it was consistent with the principles of the Act. The Commission also found that the agreement provided for a reasonable mechanism for resolving disputes between the parties.

In light of the above, the Commission approved the Total Contract Services Pty Ltd and CFMEU Union Collective Agreement 2020–2022. The Commission's approval is effective from the date of the decision and will remain in place until the end of the agreement's term, unless it is revoked or varied by the Commission. The parties are bound by the terms of the agreement, and any disputes arising under the agreement must be resolved in accordance with the dispute resolution mechanisms set out in the agreement.

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