DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5026)

VISION PRECAST PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PRECAST PANEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 18 MAY 2021

Application for approval of the VISION PRECAST PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the VISION PRECAST PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel 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] 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.

[4] 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.

[5] 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 matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the VISION PRECAST PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023. The dispute centred on the terms and conditions of employment for workers in the precast panel industry, seeking to establish a framework that balances the rights and obligations of both employers and employees.

The central legal issues that the Commission had to address were whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, including whether it was a genuine agreement, whether it contained only the matters permitted by law, and if it provided for proper minimum terms. Additionally, the Commission needed to assess whether the agreement was in the best interests of the employees it covered, taking into account any potential impacts on employee conditions and protections.

In delivering its decision, the Commission carefully examined the provisions of the proposed agreement and the submissions made by both parties. It found that the agreement was genuine, as it was not made as a result of any unlawful coercion or pressure. The Commission also determined that the agreement contained only permissible matters and did not contravene any provisions of the Fair Work Act. Furthermore, the Commission concluded that the agreement provided for proper minimum terms and was in the best interests of the employees, as it offered fair and reasonable conditions that addressed the needs and concerns of both the union and the employer.

As a result of this analysis, the Commission approved the proposed enterprise agreement. This approval ensures that the terms and conditions set out in the agreement will apply to the relevant employees, providing a legally binding framework for their employment. The approval also resolves the dispute between the parties, allowing the agreement to take effect and govern the employment conditions in the precast panel industry for the specified period.

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