DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5211)

JULIAN MCCARTHY LANDSCAPES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 31 MAY 2021

Application for approval of the JULIAN MCCARTHY LANDSCAPES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the JULIAN MCCARTHY LANDSCAPES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction 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 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 7 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 the Julian McCarthy Landscapes Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The application was brought by the union, with the employer being the respondent. The agreement was proposed to cover landscape construction subcontractors employed by Julian McCarthy Landscapes Pty Ltd and its related entities, as well as those engaged to carry out landscape construction work under contracts with Julian McCarthy Landscapes Pty Ltd.

The central legal issue before the Commission was whether the proposed enterprise agreement met the statutory criteria for approval. Specifically, the Commission had to determine if the agreement provided for the terms and conditions of employment on a fair and reasonable basis and if it met the "better off overall test". The latter required that the agreement be at least as good as the relevant awards or any other applicable agreements, and that it offered some benefits to the employees that they would not otherwise have.

In assessing the application, the Commission considered the evidence and submissions from both parties. The Commission found that the agreement provided for a fair and reasonable basis of employment and met the better off overall test. The union demonstrated that the agreement offered improved wages, conditions, and other benefits compared to the relevant awards. Additionally, the employer did not raise any objections to the agreement, and the Commission was satisfied that the agreement would not lead to any adverse economic consequences for the employer. Based on this assessment, the Commission approved the proposed enterprise agreement.

As a result of the approval, the agreement became a legally binding contract between Julian McCarthy Landscapes Pty Ltd and the union, governing the terms and conditions of employment for landscape construction subcontractors. The agreement was to remain in effect until the end of the specified period, subject to any further orders or determinations by the Fair Work Commission.

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