DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5347)

BLUE SAND ENGINEERING PTY LTD & GRAND DESIGN DEVELOPMENTS PTY LTD TAS SIX STAR CONSTRUCTION AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 8 JUNE 2021

Application for approval of the BLUE SAND ENGINEERING PTY LTD & GRAND DESIGN DEVELOPMENTS PTY LTD Tas SIX STAR CONSTRUCTION and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the BLUE SAND ENGINEERING PTY LTD & GRAND DESIGN DEVELOPMENTS PTY LTD Tas SIX STAR CONSTRUCTION and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 15 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 involved an application for the approval of the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 by Blue Sand Engineering Pty Ltd and Grand Design Developments Pty Ltd, with Tas Six Star Construction. The dispute was heard in the Fair Work Commission. The primary issue before the court was to determine if the proposed enterprise agreement was suitable for registration under the Fair Work Act 2009. The court needed to consider whether the agreement met the "better off overall test" and whether it contained any provisions that might be contrary to public policy.

In examining the application, the court applied the principles set out in the Fair Work Act, particularly focusing on the "better off overall test." This test requires that the agreement must not diminish the overall financial or non-financial conditions of employees. The court also considered whether the agreement included any provisions that could be seen as contravening public policy, such as those that might undermine workplace safety or health standards. After reviewing the terms and conditions of the proposed agreement, the court concluded that it was fair and balanced, meeting the requirements of the Act.

The court found that the proposed agreement provided for fair and reasonable terms for the employees, ensuring they were not worse off overall. It was also determined that the agreement did not include any provisions that contravened public policy. As a result, the court approved the application for the registration of the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The final orders of the court were that the agreement be approved and registered, effective from the date of the decision.

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