DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4989)

CONCRETE REPAIRS LIMITED AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS WATERPROOFING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 14 MAY 2021

Application for approval of the CONCRETE REPAIRS LIMITED and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the CONCRETE REPAIRS LIMITED and the CFMEU (Victorian Construction and General Division) Subcontractors Waterproofing 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 21 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of an Enterprise Agreement between Concrete Repairs Limited and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors. The applicants sought to have the proposed agreement, covering the period from 2020 to 2023, approved by the Commission. The legal issues at the core of this case centred around whether the agreement complied with the relevant statutory requirements under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement met the criteria for genuine agreement, if it contained the minimum terms and conditions as required by the Act, and if it was otherwise fair and reasonable.

The Fair Work Commission examined the evidence presented to ascertain whether the agreement was genuinely negotiated between the parties and whether the terms and conditions were fair and reasonable. The Commission also evaluated if the agreement contained the minimum entitlements as prescribed by the Fair Work Act. The Commission concluded that the agreement was genuinely negotiated and met all statutory requirements. The Commission found that the agreement included all the minimum terms and conditions and was fair and reasonable. Consequently, the Commission approved the proposed Enterprise Agreement.

In summary, the Fair Work Commission approved the Enterprise Agreement between Concrete Repairs Limited and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors for the period 2020 to 2023. The Commission found the agreement to be genuinely negotiated, to contain all the minimum terms and conditions, and to be fair and reasonable. As such, the Commission approved the agreement, thereby providing a framework for the employment conditions of the relevant employees during 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