DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5024)

FYTO-GREEN AUSTRALIA 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, 18 MAY 2021

Application for approval of the FYTO-GREEN AUSTRALIA 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 FYTO-GREEN AUSTRALIA 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 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 25 May 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 the FYTO-GREEN AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The parties sought the approval of this enterprise agreement under the Fair Work Act 2009, which regulates the terms and conditions of employment in Australia. The application was heard and determined by the Fair Work Commission, which has the authority to approve, reject, or make orders in relation to enterprise agreements.

The central legal issue before the Commission was whether the proposed enterprise agreement met the requirements set out in the Fair Work Act. Specifically, the Commission needed to consider whether the agreement complied with the "better off overall test" (BOOT), which requires that employees covered by the agreement be no worse off financially and, in some cases, be better off overall compared to their existing terms of employment. The Commission also had to assess whether the agreement was consistent with the provisions of the Act regarding procedural fairness, the protection of employees' rights, and the avoidance of undercutting.

In delivering its decision, the Commission thoroughly examined the submissions and evidence presented by both parties. It found that the proposed enterprise agreement satisfied the BOOT and was consistent with the other statutory requirements. The Commission noted the parties' good faith in negotiating the agreement and the measures taken to ensure that employees were appropriately consulted and informed about the agreement's implications. Based on this, the Commission approved the enterprise agreement, finding that it met all necessary legal standards and would provide a fair and reasonable framework for the employment relationship between the parties.

The Fair Work Commission's final order was to approve the FYTO-GREEN AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The agreement was deemed to be fair and reasonable, and it was authorised to take effect from the date of the Commission's decision. This outcome ensures that the terms and conditions of employment for the covered employees are governed by the agreed-upon provisions, providing a clear and legally binding framework for their workplace.

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