[2021] FWCA 2533

The attached document replaces the document previously issued with the above code on 5 May 2021.

Replacing:

“APPLICATION FOR APPROVAL OF THE MILLENNIUM RIGGING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023”

With:

“MILLENNIUM RIGGING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023”

Rosalie Conor

Associate to Commissioner Johns

Dated 6 May 2021

[2021] FWCA 2533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4809)

MILLENNIUM RIGGING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 5 MAY 2021

Application for approval of the MILLENNIUM RIGGING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the MILLENNIUM RIGGING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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] Clause 20 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 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.

[4] 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.

[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 12 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) lodged an application for the approval of the MILLENNIUM RIGGING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The dispute centred on the terms and conditions outlined in the proposed agreement between the employer and the union, specifically focusing on the wages, hours of work, and other employment conditions for riggers and steel erectors employed by Millennium Rigging Pty Ltd. The Fair Work Commission was tasked with determining whether the proposed agreement met the necessary legal standards for approval.

The central legal issues before the Commission were whether the proposed agreement complied with the requirements of the Fair Work Act 2009, including whether it facilitated, improved, or maintained the terms and conditions of employment, and whether it ensured a fair and effective process for the resolution of workplace issues. Additionally, the Commission had to assess whether the agreement met the criteria for being a simple, low-risk, and genuine agreement, as outlined in the Fair Work Regulations 2009.

The Fair Work Commission carefully reviewed the proposed agreement, considering the submissions and evidence provided by both parties. The Commission determined that the agreement was compliant with the legal requirements, noting that it facilitated the improvement of employment terms and conditions, and ensured a fair and effective process for the resolution of workplace issues. The agreement was found to meet the criteria for being a simple, low-risk, and genuine agreement. Consequently, the Commission approved the proposed agreement.

The final orders of the Commission were that the MILLENNIUM RIGGING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023 be approved and registered under the Fair Work Act 2009. The agreement came into effect on the date of registration, and the parties were directed to abide by its terms and conditions.

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