DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4293)

SPECIALISED CONCRETE PUMPING AUS 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 Specialised Concrete Pumping Aus Pty Ltd and CFMEU Union Collective Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as the Specialised Concrete Pumping Aus 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 applicants, Specialised Concrete Pumping Aus Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union, sought approval of their collective agreement from the Fair Work Commission (FWC). The dispute involved the terms and conditions of employment for concrete pumping operators within the specialised concrete pumping industry. The applicants argued that the agreement was in the best interests of the employees and the industry, while the objectors raised concerns about the potential impact on the industry's competitiveness and the availability of skilled labour.

The legal issues before the FWC were whether the proposed agreement met the criteria for approval under the Fair Work Act 2009, including whether it provided for fair and reasonable terms and conditions, and whether it was in the best interests of the employees and the industry. The FWC also needed to consider whether the agreement would have a detrimental effect on the availability of labour and the competitiveness of the industry.

In determining the application, the FWC considered the evidence and submissions from both sides, as well as the broader economic and industry context. The FWC found that the proposed agreement provided for fair and reasonable terms and conditions for the employees, and that it was in their best interests. The FWC also found that the agreement would not have a detrimental effect on the availability of labour or the competitiveness of the industry. The FWC approved the agreement, subject to certain modifications to address some of the objectors' concerns.

The FWC's decision was based on a careful consideration of the evidence and arguments presented by both sides, and a balanced assessment of the potential impacts of the agreement on the employees, the industry, and the broader economy. The approval of the agreement will provide certainty and stability for the specialised concrete pumping industry and its workforce, and help to ensure a fair and productive workplace.

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