DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4789)

INDEPENDENT CONTRACTING PTY LTD TAS INDEPENDENT SCAFFOLDS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 4 MAY 2021

Application for approval of the INDEPENDENT CONTRACTING PTY LTD Tas INDEPENDENT SCAFFOLDS 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 INDEPENDENT CONTRACTING PTY LTD Tas INDEPENDENT SCAFFOLDS 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 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

The case before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the Independent Contracting Pty Ltd Tas Independent Scaffolds and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The agreement was proposed to be a single-employer agreement, applicable to subcontractors engaged by Independent Contracting Pty Ltd Tas Independent Scaffolds to perform scaffolding work under the Building and Construction Industry (Subcontracting) Award 2020. The CFMEU sought approval of the agreement to establish terms and conditions for the subcontractors' employment, including wage rates, hours of work, and other employment-related matters.

The primary legal issue before the Commission was whether the proposed enterprise agreement was in the best interests of the employees covered by it. The Commission had to consider various factors, including whether the agreement would provide fair and reasonable terms and conditions of employment, whether it would promote the economic well-being of the employees, and whether it would be appropriate for the particular industry and circumstances. Additionally, the Commission had to ensure that the agreement complied with the relevant provisions of the Fair Work Act 2009.

In its decision, the Commission noted that the proposed agreement provided for a significant increase in wages for the subcontractors, as well as improved conditions of employment, including provisions for leave entitlements, penalty rates, and superannuation. The Commission found that the agreement would provide fair and reasonable terms and conditions of employment for the subcontractors and would promote their economic well-being. The Commission also found that the agreement was appropriate for the industry and circumstances, and that it complied with the relevant provisions of the Fair Work Act. Accordingly, the Commission approved the proposed enterprise agreement, subject to certain minor modifications.

In summary, the Fair Work Commission approved the proposed enterprise agreement between Independent Contracting Pty Ltd Tas Independent Scaffolds and the CFMEU, subject to certain minor modifications. The Commission found that the agreement provided fair and reasonable terms and conditions of employment for the subcontractors and would promote their economic well-being. The Commission also found that the agreement was appropriate for the industry and circumstances, and that it complied with the relevant provisions of 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