DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4785)

V-CONSTRUCTIONS 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, 4 MAY 2021

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

COMMISSIONER

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CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for the V-Constructions Pty Ltd and CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The applicant union and the employer, represented by V-Constructions, made an application to the Fair Work Commission (FWC) for the approval of this enterprise agreement. The FWC's role was to ensure that the agreement met the necessary legal standards and that the process through which it was reached was fair and appropriate.

The central legal issue before the FWC was whether the enterprise agreement complied with the requirements set out in the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement was made in accordance with the mandatory provisions of the Act and if it was genuinely negotiated. The FWC also considered whether the agreement contained terms that were in the best interests of the employees and whether it adhered to the principles of good faith bargaining and procedural fairness.

In reaching its decision, the FWC reviewed the evidence and submissions from both parties. The Commission found that the agreement had been negotiated in good faith and that it contained terms that were in the best interests of the employees. The FWC was satisfied that the process through which the agreement was reached was procedurally fair and that the agreement complied with all the mandatory provisions of the Act. As a result, the FWC approved the enterprise agreement.

The Fair Work Commission approved the V-Constructions Pty Ltd and CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023, determining that it met all the necessary legal requirements and was in the best interests of the employees. This decision ensures that the agreement will be implemented and will govern the employment conditions for the relevant workforce.

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