DECISION

Fair Work Act 2009
s.185—Enterprise agreement

APS Industrial Systems Pty Ltd
(AG2021/4932)

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

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 13 MAY 2021

Application for approval of the APS INDUSTRIAL SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 Architectural Features and Fittings 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 Systems 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 21.1 of the agreement provides that “the Employer shall be, and remain during the life of this 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 21.1 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.

[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 20 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, APS Industrial Systems Pty Ltd, sought approval of the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The dispute was heard in the Fair Work Commission, with the applicant arguing that the agreement should be approved as it contained terms and conditions that were fair and reasonable for the employees involved. The respondent, CFMEU, argued that certain terms of the agreement were not in the best interests of the employees and should not be approved.

The legal issues that the court was required to decide included whether the terms of the agreement were fair and reasonable, and whether the agreement met the requirements of the Fair Work Act 2009. The court had to consider the nature of the agreement, the bargaining power of the parties, and the interests of the employees. The court also had to consider whether the agreement complied with the relevant provisions of the Fair Work Act.

In its decision, the court found that the agreement contained terms and conditions that were fair and reasonable for the employees involved. The court noted that the agreement was the result of good faith bargaining between the parties, and that the terms of the agreement were not unreasonable in the circumstances. The court also found that the agreement met the requirements of the Fair Work Act, and that the terms of the agreement were not contrary to the public interest.

The court approved the agreement, subject to certain modifications to ensure that it complied with the Fair Work Act. These modifications included changes to the notice period for termination of employment, and the inclusion of a clause that provided for the payment of overtime rates for work performed outside of normal hours. The court noted that the modifications were necessary to ensure that the agreement was fair and reasonable for the employees involved, and that it complied with the relevant provisions of the Fair Work Act.

APS Industrial Systems Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established