DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4807)

ASTERN GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the ASTERN GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the ASTERN GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 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

The matter before the Fair Work Commission involved an application for the approval of the Astern Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The agreement was submitted to the Commission for its consideration and endorsement. The dispute centred around the terms and conditions set out in the proposed enterprise agreement and whether these terms complied with the relevant provisions of the Fair Work Act 2009.

The legal issues the court needed to address included whether the proposed agreement provided for a safety net of minimum terms and conditions, if it was procedurally valid, and whether it met the requirements of the Fair Work Act. Specifically, the Commission examined if the agreement contained all the mandatory terms as per the Fair Work Act and if the negotiation process adhered to the necessary standards of genuineness, fairness, and transparency. Additionally, the court considered whether the agreement was in the best interests of the employees and the broader economy.

In reaching its decision, the Fair Work Commission assessed the evidence and submissions provided by the parties. It determined that the proposed agreement did indeed offer a safety net of minimum terms and conditions, was procedurally valid, and met the requirements of the Fair Work Act. The Commission found that the negotiation process was genuine, fair, and transparent, and the agreement was in the best interests of the employees and the broader economy. Consequently, the Fair Work Commission approved the Astern Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

The final orders of the Commission were that the proposed enterprise agreement be approved, effective from 1 July 2020, for a period of three years, until 30 June 2023. The agreement was to be registered and published in accordance with the Fair Work Act, and it was to apply to all employees covered by the agreement. The Commission also directed that the agreement be notified to all relevant parties as required by the 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