DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4140)

THE TRUSTEE FOR ADAMS FAMILY TRUST T/AS BILL ADAMS TILING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 23 MARCH 2021

Application for approval of The Trustee for Adams Family Trust T/As Bill Adams Tiling Pty Ltd and CFMEU Union Collective Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as The Trustee for Adams Family Trust T/As Bill Adams Tiling 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 30 March 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of a union collective agreement with The Trustee for Adams Family Trust T/As Bill Adams Tiling Pty Ltd for the period 2020 to 2022. The Fair Work Commission was tasked with determining whether the agreement should be approved. The CFMEU sought approval of the agreement under section 234 of the Fair Work Act 2009, arguing that it met the requirements for being a registered agreement, which would allow it to be registered and enforced as if it were a modern award.

The legal issues before the Commission centred on whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. The Commission had to consider whether the agreement was made in good faith and whether it provided for a fair and efficient workplace. Additionally, the Commission needed to determine whether the agreement met the criteria for being a registered agreement, which would allow it to be registered and enforced as if it were a modern award.

The Fair Work Commission found that the agreement met the requirements for being a registered agreement. The Commission noted that the agreement was made in good faith and provided for a fair and efficient workplace. The Commission also found that the agreement met the criteria for being a registered agreement, including that it was made by an eligible union and an eligible employer, and that it provided for a minimum of four years. The Commission was satisfied that the agreement provided for a fair and efficient workplace and that it met the requirements for being a registered agreement.

The Fair Work Commission approved the agreement and registered it as a registered agreement under section 171 of the Fair Work Act. The agreement is now legally binding on the parties and will remain in force until it is terminated or expires. The Commission's decision provides clarity on the requirements for a union collective agreement to be approved and registered, and it sets a precedent for future agreements in the construction industry.

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