DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5328)

KLEENPRO PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CLEANING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the KLEENPRO PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the KLEENPRO PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning 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

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 applied for approval of the KLEENPRO PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning Enterprise Agreement 2020-2023. The agreement was made between the employer, KLEENPRO PTY LTD, and the union, the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred around whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues before the court were whether the agreement complied with the relevant provisions of the Fair Work Act, and whether it contained all the necessary terms and conditions as stipulated by the legislation. Specifically, the court had to determine if the agreement was made in good faith and if it provided for the proper regulation of terms and conditions of employment. Additionally, the court examined if the agreement included minimum terms as required, and if it allowed for genuine bargaining between the parties.

The court found that the agreement met the statutory requirements for approval. It concluded that the agreement was made in good faith and provided for the proper regulation of terms and conditions of employment. The agreement included the minimum terms as required by the Fair Work Act and allowed for genuine bargaining. The court was satisfied that the agreement provided fair and reasonable terms for employees and employers alike. As a result, the court approved the agreement.

The final orders of the court were to approve the KLEENPRO PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning Enterprise Agreement 2020-2023. The agreement was to be registered with the Fair Work Commission and would come into effect from the date of registration. The decision confirmed the validity and enforceability of the agreement between the employer and the union.

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