DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4958)

VERTICAL GROUP PTY LTD TAS VERTICAL CLEANERS VIC AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CLEANING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the VERTICAL GROUP PTY LTD Tas VERTICAL CLEANERS VIC and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the VERTICAL GROUP PTY LTD Tas VERTICAL CLEANERS VIC and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning 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

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CaseChat Overview and Summary

The parties involved in this matter were Vertical Group Pty Ltd, Vertical Cleaners Victoria, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), Victorian Construction and General Division, Subcontractors Cleaning Enterprise Agreement. The dispute centred around the approval of a new enterprise agreement between the companies and the union, which was to cover the period from 2020 to 2023. The case was heard in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009.

The central legal issues before the court were whether the proposed enterprise agreement was in the best interests of the employees, whether it complied with the provisions of the Fair Work Act, and whether it had been genuinely negotiated between the parties. The court had to consider the fairness and reasonableness of the agreement, the impact it would have on the employees, and whether the bargaining process was conducted in good faith. Additionally, the court needed to ensure that the agreement did not undermine the rights of employees or the collective bargaining process.

In its decision, the Fair Work Commission carefully examined the proposed enterprise agreement and the process through which it was negotiated. The Commission found that the agreement was in the best interests of the employees, as it provided for fair and reasonable terms of employment while also ensuring the businesses' sustainability and competitiveness. The Commission also determined that the agreement complied with the requirements of the Fair Work Act and that it had been genuinely negotiated between the parties. The Commission approved the enterprise agreement, acknowledging that it struck an appropriate balance between the rights and interests of the employees and the legitimate needs of the businesses.

As a result of the Commission's decision, the Vertical Group Pty Ltd, Vertical Cleaners Victoria, and the CFMEU (Victorian Construction and General Division) Subcontractors Cleaning Enterprise Agreement 2020-2023 was approved. The agreement will now govern the employment terms and conditions for the employees within the specified period. The decision of the Fair Work Commission will provide certainty and stability for the parties involved, as well as ensuring the rights of the employees are protected under the Fair Work Act.

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