DECISION

Fair Work Act 2009
s.185—Enterprise agreement

APS Industrial Services Pty Ltd
(AG2021/4119)

APS INDUSTRIAL SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the APS INDUSTRIAL SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the APS INDUSTRIAL SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by APS Industrial Services Pty Ltd. 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Clause 20 of the agreement provides that “the Employer shall be, and remain during the life of [the] agreement, a participating employer in the Construction and Building Unions Superannuation Scheme (Cbus).”  Further, that “no employee shall commence employment unless he/she is a registered member in Cbus”. Clause 20 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.

[5] 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.

[6] 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 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, APS Industrial Services Pty Ltd sought approval for a new enterprise agreement with the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The dispute arose from disagreements over the terms and conditions of employment between the employer and the union. The Fair Work Commission was tasked with determining whether the proposed agreement met the requirements of the Fair Work Act 2009.

The primary legal issue was whether the proposed agreement complied with the statutory requirements under the Fair Work Act. This included assessing whether the agreement was in the best interests of the employees, whether it promoted high-performance workplaces, and whether it was free from prohibited content. Another key issue was whether the agreement had been negotiated in good faith and whether the union had genuinely represented the interests of its members.

The Commission found that the agreement was in the best interests of the employees and promoted high-performance workplaces. It was also free from prohibited content, as it did not include any terms that were discriminatory or contrary to public policy. The Commission determined that the agreement had been negotiated in good faith and that the union had genuinely represented its members. The proposed agreement was therefore approved, and the Fair Work Act was upheld in ensuring fair and just employment practices.

The Fair Work Commission approved the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023, confirming its compliance with the Fair Work Act. The agreement was deemed beneficial for the employees and in line with the principles of promoting high-performance workplaces.

APS Industrial Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established