DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4766)

COMPLETE 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, 4 MAY 2021

Application for approval of the COMPLETE 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 COMPLETE 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 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 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 11 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval of a subcontractor enterprise agreement with Complete Rigging Pty Ltd. The dispute arose over the terms of the proposed agreement, specifically the classification and wages of the workers employed by Complete Rigging. The Commission was required to determine whether the agreement provided a safety net of minimum wages and conditions, and whether it was in the interests of the workers it was intended to cover.

The primary legal issue was whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, particularly in relation to the Fair Work (Registered Organisations) Act 2009. The Commission had to consider whether the agreement provided appropriate minimum standards of pay and conditions, and whether it was consistent with the public interest, including the protection of vulnerable workers. Additionally, the Commission had to assess whether the agreement would provide a fair and efficient way to determine terms and conditions of employment.

The Commission found that the proposed agreement provided an adequate safety net of minimum wages and conditions, and was in the interests of the workers it covered. The Commission was satisfied that the agreement met the statutory requirements, and would not undermine the Australian system of industrial relations. The Commission approved the agreement, noting that it provided a fair and efficient way to determine the terms and conditions of employment for the workers covered by the agreement.

The Commission made orders approving the Complete Rigging Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The agreement was to be registered by the Commission, and would be in effect from 1 January 2021 until 31 December 2023. The Commission also ordered that any variations to the agreement must be approved by the Commission before they could take effect.

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