DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4931)

HAYCO INDUSTRIES PTY LTD TAS WE FIT AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 13 MAY 2021

Application for approval of the HAYCO INDUSTRIES PTY LTD Tas WE FIT and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the HAYCO INDUSTRIES PTY LTD Tas WE FIT and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 20 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicants in this case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Hayco Industries Pty Ltd, who sought approval of their enterprise agreement from the Fair Work Commission (FWC). The dispute centred on the terms and conditions of employment outlined in the proposed agreement, which was to cover the period from 2020 to 2023. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue the FWC had to address was whether the proposed agreement contained all the mandatory terms prescribed by the Fair Work Act, and if it provided for minimum entitlements that were no less favourable than those set out in the relevant industrial instruments. Additionally, the FWC needed to ensure that the agreement did not contravene any provisions of the Act that could potentially undermine the objectives of the legislation, such as those aimed at promoting high-quality employment relationships.

In delivering its decision, the FWC examined the proposed agreement in detail, assessing each term and condition against the statutory requirements. The Commission found that the agreement did not fully comply with certain mandatory terms, particularly in relation to the classification of employees and the calculation of overtime. Despite these deficiencies, the FWC considered the overall fairness of the agreement and the extent to which it promoted harmonious, productive and cooperative workplace relationships. Ultimately, the FWC approved the agreement with minor modifications to ensure compliance with the mandatory terms.

The Fair Work Commission approved the proposed agreement with modifications to ensure it complied with the mandatory terms. The Commission's decision reflects a balanced approach, acknowledging the parties' efforts to negotiate a fair agreement while ensuring adherence to statutory requirements. The final orders included specific amendments to the agreement to rectify the identified deficiencies, ensuring that the agreement met the necessary standards for approval.

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