DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4883)

STEEL ET AL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 11 MAY 2021

Application for approval of the STEEL ET AL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the STEEL ET AL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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 18 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Steel et al. Pty Ltd, with the dispute centred around the approval of a specific enterprise agreement for architectural features and fittings subcontractors in Victoria. The Fair Work Commission was the tribunal tasked with resolving the dispute. The primary legal issue was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. The court had to determine if the agreement contained necessary provisions, was free from prohibited content, and was fairly negotiated.

The Commission examined the fairness of the agreement by considering the bargaining positions of the parties, the nature of the industry, and the overall terms and conditions. The court held that the agreement, while generally fair, contained provisions that did not adequately protect employees' entitlements to overtime, shift differentials, and other benefits. The Commission also found that the agreement's provisions on dispute resolution mechanisms were not sufficiently robust and could lead to potential delays and inefficiencies in resolving workplace disputes. Ultimately, the court found that the agreement did not meet the requirements for approval under the Fair Work Act 2009.

In its decision, the Fair Work Commission recommended several changes to the agreement, including the addition of specific provisions to protect employee entitlements and strengthen dispute resolution mechanisms. The court ordered that the agreement could not be approved in its current form and directed the parties to renegotiate the terms to address the identified issues. The court also set a timeframe for the renegotiation process and mandated that any revised agreement must be submitted to the Commission for further review before it could be approved.

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