DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5107)

RAW RECRUITMENT AND SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) INDIGENOUS EMPLOYMENT & TRAINING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the RAW RECRUITMENT AND SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Employment & Training Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the RAW RECRUITMENT AND SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Employment & Training 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 1 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application for the approval of a new enterprise agreement between Raw Recruitment and Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was made to the Fair Work Commission, which has jurisdiction over the approval of enterprise agreements under the Fair Work Act 2009. The agreement in question was proposed for a period of 2020-2023 and specifically addressed the employment and training of Indigenous workers. The legal issues the court was required to decide centered on whether the proposed agreement met the statutory requirements for approval, particularly whether it provided for fair and reasonable terms and conditions, and whether it complied with the procedural requirements for the negotiation and making of the agreement.

The court considered whether the agreement had been genuinely negotiated between the parties, whether it included all necessary terms, and whether it complied with the procedural requirements set out in the Fair Work Act. The court also examined whether the proposed terms and conditions were fair and reasonable, taking into account the principles of contemporary awards and the need to provide for a safety net for employees. The Fair Work Commission determined that the agreement had been genuinely negotiated and contained all necessary terms, and that it provided for fair and reasonable terms and conditions. The court found that the agreement met all the statutory requirements for approval and granted the application for approval.

The court's reasoning was based on a detailed examination of the negotiation process, the content of the agreement, and the compliance with the Fair Work Act. The court found that the negotiation process had been conducted in good faith and that the agreement reflected the outcomes of that process. The court also considered the content of the agreement, finding that it provided for terms and conditions that were fair and reasonable, and that it did not undermine the safety net provided by contemporary awards. Finally, the court found that the agreement complied with all procedural requirements, including the requirement for the parties to provide certain information to the Commission. The court granted the application for approval, and the agreement was approved as of the date of the decision.

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