DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5660)

CIVIWORKS CONCRETE CONSTRUCTION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 30 JUNE 2021

Application for approval of the Civiworks Concrete Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the Civiworks Concrete Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 7 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the Civiworks Concrete Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The dispute centered on the terms and conditions of employment for concrete placement subcontractors working for Civiworks, a company engaged in concrete construction projects in Victoria. The Commission had to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement facilitated genuine bargaining, was free from coercion and undue influence, and covered a genuine enterprise. Another issue was whether the agreement contained the required minimum terms and conditions, and if it provided for the proper regulation of workplace relations. The Commission also had to consider whether the agreement was in the best interests of the employees covered by it.

The Commission found that the agreement had been genuinely bargained and was free from coercion and undue influence. It covered a genuine enterprise and contained the required minimum terms and conditions. The Commission noted that the agreement provided for proper regulation of workplace relations and was in the best interests of the employees covered by it. The Commission was satisfied that the agreement met all the necessary criteria for approval under the Fair Work Act 2009. Consequently, the Commission approved the agreement.

The Commission made an order approving the Civiworks Concrete Construction Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The order also included provisions for the agreement to be registered and published on the Commission's website. The decision provides clarity and guidance for employers and employees in the concrete construction industry in Victoria regarding the terms and conditions of employment for concrete placement subcontractors.

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