DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4462)

FEENIX BALUSTRADES 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 Feenix Balustrades Pty Ltd and CFMEU Union Collective Agreement 2020–2022.

[1] An application has been made for approval of an enterprise agreement known as the Feenix Balustrades 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Fair Work Commission was asked to approve a collective agreement between Feenix Balustrades Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2020-2022. The application was made by the CFMEU and was opposed by Feenix Balustrades. The dispute centred around several provisions within the proposed agreement, including those related to pay rates, classification, and dispute resolution mechanisms.

The primary legal issues before the Commission were whether the collective agreement complied with the relevant provisions of the Fair Work Act 2009, and if it met the requirements for being a "better off overall test" (BOOT) agreement. The Commission needed to determine if the agreement provided employees with outcomes that were at least as good as what they would have received under the applicable award or registered agreement.

In its decision, the Commission examined each contested provision in the context of the Fair Work Act. It noted that the proposed pay rates and conditions were consistent with industry benchmarks and provided employees with improved outcomes compared to the applicable award. The Commission also found that the dispute resolution mechanisms were fair and reasonable, and that the agreement included appropriate safeguards to ensure compliance. After considering the evidence and submissions from both parties, the Commission concluded that the agreement was compliant with the Act and satisfied the BOOT requirement.

Accordingly, the Commission approved the Feenix Balustrades Pty Ltd and CFMEU Union Collective Agreement 2020-2022. The agreement was to be registered with the Fair Work Commission, and the parties were directed to take all necessary steps to implement its terms. The decision provided certainty for both the employer and employees, and established a fair and reasonable framework for their relationship during the agreement's duration.

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