DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5332)

TRUE SEAL AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 7 JUNE 2021

Application for approval of the TRUE SEAL and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the TRUE SEAL and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing 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 14 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 Fair Work Commission involved an application for the approval of a new enterprise agreement between True Seal Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement, titled the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023, was proposed as a means to govern the terms and conditions of employment for caulking and sealing subcontractors engaged by True Seal. The dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue the Commission needed to address was whether the proposed agreement was a genuine enterprise agreement and whether it complied with all statutory requirements. This included an assessment of whether the agreement had been made in good faith, whether it contained the minimum terms and conditions set out in the Fair Work Act, and whether it had been certified by the Commission as meeting the criteria for a protected action ballot. The Commission also considered the fairness of the terms and conditions in the agreement, ensuring they were not less favourable than the relevant award or safety net award.

In reaching its decision, the Commission examined the evidence provided by both parties and the content of the agreement itself. It was determined that the agreement had been made in good faith and contained all the required minimum terms and conditions. The Commission found that the agreement provided for fair and reasonable terms, and that it did not unjustifiably diminish the conditions of the employees covered by it. As such, the Commission approved the agreement, finding it to be compliant with all relevant legislative requirements.

As a result of this determination, the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 has been formally approved and will now govern the employment conditions for the affected workers. The Commission's approval is effective from the date of the decision and will remain in place until the agreement expires or is replaced by a new 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