DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5413)

MELBWELD PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 10 JUNE 2021

Application for approval of the MELBWELD PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the MELBWELD PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 20.1 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 20.1 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 17 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court was an application for the approval of an enterprise agreement between MELBWELD PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The application was brought to the Fair Work Commission by the union, seeking the formal endorsement of the proposed agreement for the period 2020-2023. The legal issues before the court revolved around whether the agreement complied with the requirements of the Fair Work Act 2009 and if it appropriately covered the terms and conditions of employment for the specified period. The court needed to assess whether the agreement met the statutory criteria for enterprise agreements, including whether it was made in good faith, contained permissible terms, and provided a safety net for employees.

The Fair Work Commission considered the provisions of the agreement and the submissions made by the parties. The court noted that the agreement included terms for wages, hours of work, leave, and other employment conditions. The court examined whether the agreement provided for a safety net that was no less favourable than the applicable award or registered agreement. It also considered if the agreement was made in good faith and whether it contained any prohibited content. The Commission found that the agreement complied with the statutory requirements and was in the best interests of the employees. It was determined that the agreement met the necessary criteria for approval under the Fair Work Act 2009.

Consequently, the Fair Work Commission approved the MELBWELD PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The agreement was found to be compliant with the statutory requirements, providing a fair and reasonable framework for the employment conditions of the employees. The approval was granted based on the court's finding that the agreement met all the necessary criteria for an enterprise agreement under the Fair Work Act 2009.

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