DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4875)

STILCON SCAFFOLDING PTY LTD ANDTHE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORSCONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 10 MAY 2021

Application for approval of the STILCON SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the STILCON SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding 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 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 17 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, STILCON SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division), sought approval for their Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The respondent, the Australian Building and Construction Commission, objected to the application on the basis that the agreement did not meet the requirements of the Fair Work Act 2009. The case was heard by the Fair Work Commission.

The central legal issues revolved around whether the agreement complied with the Fair Work Act, specifically in terms of the process by which it was made and the provisions within it. Key concerns included whether the agreement was genuinely negotiated between the parties and whether it contained provisions that were contrary to public policy or contrary to the general principles of the Act.

The Commission examined the process of negotiation and the content of the agreement. It determined that the agreement was genuinely negotiated, as evidenced by the extensive documentation and the involvement of both parties. Regarding the content, the Commission found that while some provisions were contentious, none were contrary to public policy or the general principles of the Fair Work Act. The Commission concluded that the agreement, despite some issues, met the statutory requirements and approved it.

As a result of the Commission's decision, the Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023 was approved, and the objections raised by the respondent were dismissed. The agreement is now valid and binding 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