DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5728)

PROBLOCK CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS BRICK LAYING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the PROBLOCK CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PROBLOCK CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying 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

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and PROBLOCK CONSTRUCTIONS PTY LTD made an application for the approval of the PROBLOCK CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission (FWC). The FWC had to decide if the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009 (Cth). The key issues before the FWC were whether the proposed agreement met the criteria for being a simple, genuine and independent agreement, and if it was procedurally valid.

The FWC found that the proposed agreement was simple, genuine, and independent. The agreement was clear, concise and did not contain complex provisions that would be difficult for employees to understand. The FWC was satisfied that the agreement was genuinely negotiated between the parties and was not imposed by one party. The FWC also determined that the agreement was procedurally valid, as it was made in accordance with the requirements of the Fair Work Act. The FWC approved the PROBLOCK CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Brick laying Enterprise Agreement 2020-2023. The FWC issued an approval certificate for the agreement, which means that it is legally binding on the parties and their employees.

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