DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5693)

A2 CLEANING GROUP PTY LTD T/AS A2 ABSEILING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS SPECIALISED ROPE ACCESS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 2 JULY 2021

Application for approval of the A2 CLEANING GROUP PTY LTD T/AS A2 ABSEILING and the CFMEU (Victorian Construction and General Division) Subcontractors Specialised Rope Access Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the A2 CLEANING GROUP PTY LTD T/AS A2 ABSEILING and the CFMEU (Victorian Construction and General Division) Subcontractors Specialised Rope Access 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 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] 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 [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 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 9 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the A2 CLEANING GROUP PTY LTD T/AS A2 ABSEILING and the CFMEU (Victorian Construction and General Division) Subcontractors Specialised Rope Access Enterprise Agreement 2020-2023. The applicant was the Construction, Forestry, Maritime, Mining and Energy Union, representing the employees, and the respondent was A2 Cleaning Group, representing the employer. The dispute centred around the terms and conditions of employment set out in the proposed enterprise agreement, particularly those concerning wages, hours of work, and other employment-related matters.

The central legal issues the Commission had to address were whether the agreement met the statutory requirements under the Fair Work Act 2009 and if it provided for the fair and equitable treatment of employees. This involved scrutinising the agreement to ensure it complied with the provisions of the Act, particularly in relation to the process by which it was negotiated and the terms it contained. The Commission needed to determine whether the agreement was "better off overall" for the employees and if it adhered to the procedural fairness required by the law.

In its decision, the Fair Work Commission found that the proposed agreement was consistent with the requirements of the Fair Work Act. The Commission noted that the agreement had been negotiated in good faith and that it provided for fair and reasonable terms and conditions for the employees. The Commission was satisfied that the agreement met the "better off overall" test and that it adhered to the necessary procedural fairness. Consequently, the Commission approved the agreement, recognising it as a valid enterprise agreement under the Act.

The final orders of the Commission were to approve the A2 CLEANING GROUP PTY LTD T/AS A2 ABSEILING and the CFMEU (Victorian Construction and General Division) Subcontractors Specialised Rope Access Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the employees for the specified period.

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