DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5135)

MATANIEL LAURATE PTY LTD TAS CAREY CIVIL CONTRACTORS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 25 MAY 2021

Application for approval of the MATANIEL LAURATE PTY LTD Tas CAREY CIVIL CONTRACTORS and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the MATANIEL LAURATE PTY LTD Tas CAREY CIVIL CONTRACTORS and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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 1 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the MATANIEL LAURATE PTY LTD Tas CAREY CIVIL CONTRACTORS and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The applicants are an employer and a trade union. The dispute arose because of the terms and conditions of employment of employees who are part of the relevant bargaining unit. The applicants submitted the enterprise agreement for approval on 22 January 2021.

The Commission was required to determine whether the enterprise agreement was suitable for registration under section 172 of the Fair Work Act 2009 (Cth). The relevant provisions of the Act required the Commission to consider whether the enterprise agreement provided for fair and appropriate terms and conditions, and whether the agreement had been made in accordance with the requirements of the Act. The Commission was also required to consider the views of the employees and whether the agreement had been made in good faith.

The Commission found that the enterprise agreement was suitable for registration. The Commission noted that the agreement had been negotiated in good faith, and that the terms and conditions of employment were fair and appropriate. The Commission also noted that the agreement provided for a number of protections for employees, including provisions for minimum wages and conditions, and provisions for the resolution of disputes. The Commission was satisfied that the agreement had been made in accordance with the requirements of the Act, and that the views of the employees had been taken into account.

The Commission approved the enterprise agreement, which will now be registered with the Fair Work Commission. The agreement will apply to employees of MATANIEL LAURATE PTY LTD Tas CAREY CIVIL CONTRACTORS who are part of the relevant bargaining unit.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established