DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5235)

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

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 1 JUNE 2021

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

[1] An application has been made for approval of an enterprise agreement known as the OCJ PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 8 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in the case were OCJ PTY LTD, an Australian construction company, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) representing the interests of the workers. The dispute centred on the application for approval of the OCJ PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. This case was heard in the Fair Work Commission (FWC), Australia's national workplace relations tribunal.

The primary legal issue that the FWC was required to decide was whether the proposed enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009 (Cth). The FWC had to assess if the agreement was in the best interests of the employees, was free from coercion and undue influence, and if it provided fair and reasonable terms for both parties. Moreover, the FWC needed to consider if the agreement complied with the Fair Work (Registered Organisations) Act 2009 (Cth) and if it adhered to the principles of the National Employment Standards and the National Minimum Wage System.

The FWC determined that the proposed enterprise agreement met the criteria for approval. The Commission found that the agreement provided fair and reasonable terms for the employees and that it was in their best interests. The FWC also concluded that the agreement was free from coercion and undue influence and that it complied with the relevant legislation. The Commission considered the submissions made by both parties and took into account the various factors, including the economic circumstances, the bargaining power of the parties, and the overall fairness of the agreement. The FWC was satisfied that the agreement met the necessary requirements and approved the OCJ PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

The FWC's decision was made under section 233 of the Fair Work Act 2009 (Cth), which grants the Commission the authority to approve, reject, or seek modifications to an enterprise agreement. In this case, the FWC approved the agreement, allowing it to be legally binding on the parties involved. This outcome provided certainty for both OCJ PTY LTD and the CFMEU, as well as the employees covered by the agreement, in relation to their workplace rights and obligations.

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