DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4296)

BAUER FOUNDATIONS AUSTRALIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 1 APRIL 2021

Application for approval of the Bauer Foundations Australia Pty Ltd and CFMEU Union Collective Agreement 2020–2022.

[1] An application has been made for approval of an enterprise agreement known as the Bauer Foundations Australia 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 8 April 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in this matter were the Construction, Forestry, Maritime, Mining and Energy Union and Bauer Foundations Australia Pty Ltd. The nature of the dispute was the application for approval of the 2020-2022 Collective Agreement between the union and the company. The matter was heard in the Fair Work Commission of Australia. The legal issues that the court was required to decide related to the fairness and reasonableness of the terms and conditions outlined in the collective agreement. Specifically, the court had to determine if the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The court considered the fairness and reasonableness of the agreement in light of the economic and social context in which it was made. The court examined the nature of the industry, the bargaining power of the parties, and the overall impact of the agreement on the employees and the business. The court also considered the relevance and appropriateness of the provisions in the agreement to the industry and the parties involved. The court found that the agreement was fair and reasonable, and met the statutory requirements for approval. The court approved the collective agreement, recognising the importance of the agreement in providing a framework for fair and productive industrial relations in the industry.

The court's decision was based on a thorough examination of the agreement and the context in which it was made. The court found that the agreement was negotiated in good faith and provided for fair and reasonable terms and conditions of employment. The court also found that the agreement was consistent with the objectives of the Fair Work Act, and did not undermine the rights and interests of the employees or the business. The court approved the agreement, recognising the importance of the agreement in providing a framework for fair and productive industrial relations in the industry. The decision sets a precedent for the approval of similar collective agreements in the future.

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