DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5116)

GRAND SEAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the GRAND SEAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023.

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

The Construction, Forestry, Maritime, Mining and Energy Union sought approval for the Grand Seal Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The application was made under section 231 of the Fair Work Act 2009. The primary dispute arose from disagreements between the parties regarding certain provisions of the proposed agreement, particularly those relating to hours of work, penalty rates, and the classification of employees.

The key legal issues before the court involved determining whether the proposed agreement met the criteria for approval under the Fair Work Act. This included assessing whether the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith. The court had to consider whether the provisions in dispute were necessary to prevent unfair treatment of employees and whether they provided adequate protections. The arguments centred on the interpretation of the Act and the balance between the rights of employers and employees.

In delivering its judgment, the court examined the provisions of the agreement in light of the relevant statutory provisions and case law. The court found that the provisions in dispute were necessary to prevent unfair treatment of employees and were reasonable in the circumstances. The court also determined that the agreement was made in good faith and met the requirements for approval under the Fair Work Act. The court emphasised the importance of protecting employees' rights and ensuring fair and reasonable terms and conditions in the workplace.

The court approved the Grand Seal Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The agreement was approved with the conditions that the parties provide a copy of the approved agreement to the Fair Work Commission and that the agreement be registered with the Commission. This decision ensures that the terms and conditions of employment are fair and reasonable, and it provides a framework for the parties to manage their industrial relations effectively.

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