DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4117)

CITY COAST TILING (QUEENSLAND) PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 22 MARCH 2021

Application for approval of the City Coast Tiling (Queensland) Pty Ltd and CFMEU Union Collective Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as the City Coast Tiling (Queensland) 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 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 29 March 2021. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for approval of a collective agreement entered into with City Coast Tiling (Queensland) Pty Ltd. The agreement in question related to the employment conditions of employees within the tiling industry in Queensland. The dispute centred on whether the terms of the collective agreement complied with the relevant statutory requirements and whether they were fair and reasonable.

The legal issues that the Commission had to decide included whether the agreement met the criteria for being a "Registered Agreement" under the Fair Work Act 2009, and whether it contained terms that were consistent with the Fair Work Act's provisions, including the provision of minimum entitlements and protections for employees. The Commission also had to consider whether the agreement was consistent with the Fair Work (Registered Organisations) Regulations 2016.

In its decision, the Commission found that the collective agreement did not meet the criteria for being a Registered Agreement because it did not include certain mandatory terms required by the Fair Work Act. The Commission noted that the agreement did not contain provisions for minimum wage rates, penalty rates, and leave entitlements, which are mandatory terms under the Fair Work Act. The Commission also found that the agreement contained terms that were inconsistent with the Fair Work Act, such as provisions that allowed for the reduction of employees' entitlements in certain circumstances. However, the Commission found that the agreement did contain terms that were consistent with the Fair Work Act and that were fair and reasonable. The Commission approved the agreement with modifications to ensure that it met the statutory requirements and included the necessary mandatory terms.

The Fair Work Commission approved the collective agreement with modifications to ensure compliance with the Fair Work Act, including the inclusion of mandatory terms such as minimum wage rates, penalty rates, and leave entitlements. The modifications also included changes to certain provisions that were inconsistent with the Fair Work Act. The Commission's decision highlights the importance of ensuring that collective agreements comply with the relevant statutory requirements and provide for fair and reasonable terms and conditions of employment.

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