DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5530)

J BROS FORMWORK PTY LTD CAIRNS CONVENTION CENTRE PROJECT GREENFIELDS AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 21 JUNE 2021

Application for approval of the J Bros Formwork Pty Ltd Cairns Convention Centre Project Greenfields Agreement 2020.

[1] An application has been made for approval of a greenfields agreement known as the J Bros Formwork Pty Ltd Cairns Convention Centre Project Greenfields Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

[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. In particular, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Clause 24.2 of the agreement provides that “for Employees other than Electrical Workers and Metals and Engineering Trades Workers, such contributions will be paid to CBUS or BUSS(Q).” Further, that “for Employees employed as Electrical Workers, such contributions will be paid to Energy Super” and “for employees employed as Metals and Engineering Trades workers, such contributions will be paid to Australian Super.” Clause 24.2 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.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 28 June 2021. The nominal expiry date of the Agreement is 2 July 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the J Bros Formwork Pty Ltd Cairns Convention Centre Project Greenfields Agreement 2020. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of the agreement under section 235 of the Fair Work Act 2009, which allows for the making of an agreement that provides for terms and conditions of employment that are more favourable than the applicable award or registered agreement. The Commission was required to determine whether the agreement was in the best interests of the employees covered by it.

The central legal issue before the Commission was whether the proposed agreement, which included provisions for reduced hours of work and the introduction of a four-day work week, was in the best interests of the employees. The CFMEU argued that the agreement would improve work-life balance and reduce stress for employees, while the employer contended that the changes were necessary to ensure the financial viability of the project. The Commission needed to balance the interests of the employees with those of the employer and consider whether the agreement would lead to improved working conditions.

After hearing evidence from both parties and considering the submissions made, the Commission found that the agreement was in the best interests of the employees. The Commission noted that the agreement provided for improved work-life balance and reduced stress, which would benefit the employees. The Commission also found that the employer had demonstrated that the changes were necessary to ensure the financial viability of the project and that the agreement would not have a negative impact on the employees' wages and conditions. Accordingly, the Commission approved the agreement under section 235 of the Fair Work Act.

The Commission made an order approving the J Bros Formwork Pty Ltd Cairns Convention Centre Project Greenfields Agreement 2020, subject to certain conditions. The agreement will now apply to the employees covered by it, providing for reduced hours of work and the introduction of a four-day work week. The employer and the CFMEU will be required to comply with the terms of the agreement, and any disputes arising out of it will be resolved in accordance with the dispute resolution procedures set out in the agreement.

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