DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4957)

TOMMY ESTCOURT EARTHMOVING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the TOMMY ESTCOURT EARTHMOVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the TOMMY ESTCOURT EARTHMOVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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

In the case of the Construction, Forestry, Maritime, Mining and Energy Union, the applicant sought approval of the TOMMY ESTCOURT EARTHMOVING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission, an Australian federal body responsible for resolving workplace disputes and promoting fair work practices. The agreement in question was between Tommy Estourt Earthmoving Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union, representing subcontractors in the earthmoving, excavation, and drainage sectors.

The legal issues before the court revolved around whether the proposed agreement met the statutory requirements under the Fair Work Act 2009. Key considerations included whether the agreement complied with the formal requirements for enterprise agreements, such as proper notice and consultation, and whether it contained the necessary provisions for fair and reasonable terms and conditions of employment. The court also had to determine whether the agreement would have a detrimental effect on employees by potentially disadvantaging them.

The Fair Work Commission concluded that the proposed agreement did not meet the statutory requirements. The court found that there were deficiencies in the notice and consultation processes, which are crucial for ensuring that employees are properly informed and have an opportunity to provide input. Additionally, the court determined that the agreement did not adequately address key employment terms, such as pay rates and working conditions, which are essential for a fair and reasonable enterprise agreement. Consequently, the Commission did not approve the agreement.

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