DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4141)

TILECORP 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 Tilecorp Pty Ltd and CFMEU Union Collective Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as the Tilecorp 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] The Clause 32 of the agreement provides that “It is agreed that the default fund under this agreement shall be BussQ”. Clause 32 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 matter before the Fair Work Commission involved an application for the approval of the Tilecorp Pty Ltd and Construction, Forestry, Maritime, Mining and Energy Union Collective Agreement 2020-2022. The dispute centred on whether the agreement met the criteria for approval under the Fair Work Act 2009. The Union sought to have the agreement approved, while Tilecorp Pty Ltd did not oppose the approval of the agreement, except for certain provisions related to pay rates and conditions. The Fair Work Commission was tasked with determining the validity of the agreement, particularly focusing on the provisions that Tilecorp Pty Ltd contested.

The key legal issues for the Commission to address were whether the agreement complied with the mandatory requirements of the Fair Work Act, including the provisions on minimum wages and conditions. Additionally, the Commission had to consider whether the agreement facilitated genuine bargaining and whether it contained any unfair provisions that could be excluded under the Act. The Union argued that the contested provisions were the result of genuine bargaining and were necessary to address specific workplace issues. Tilecorp Pty Ltd, while not opposing the overall approval of the agreement, maintained that certain clauses did not meet the standards set by the Act.

In its decision, the Fair Work Commission found that the majority of the agreement was consistent with the requirements of the Act. The Commission noted that the parties had engaged in genuine bargaining, and the provisions in question were necessary to address specific workplace issues and ensure fairness. The Commission held that the contested provisions did not contravene the Act and were, therefore, valid. Consequently, the Commission approved the agreement with the contested provisions intact. The decision underscored the importance of genuine bargaining and the flexibility of the Act to accommodate agreements that reflect the needs of the workplace.

The final orders of the Commission were that the Tilecorp Pty Ltd and CFMEU Union Collective Agreement 2020-2022 be approved as lodged, with the specific provisions regarding pay rates and conditions upheld. This decision allowed the agreement to come into effect, ensuring that the terms and conditions of employment for the employees covered by the agreement were legally recognised and enforceable.

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