DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4787)

MONERO CONSTRUCTIONS AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the MONERO CONSTRUCTIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the MONERO CONSTRUCTIONS AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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

The case involved an application for the approval of a Subcontractors Concrete Placement Enterprise Agreement 2020-2023 between Monero Constructions Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was brought before the Fair Work Commission. The dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement was in the public interest, covered a class of employees, and contained the necessary minimum terms and conditions as stipulated by the Act.

The primary legal issues addressed by the court were whether the agreement was made in good faith and whether it contained all the mandated minimum terms as required by the Fair Work Act. The court also had to consider whether the agreement was likely to have a significant impact on the industry, and whether it would promote productivity, efficiency, and economic growth. Another issue was whether the agreement was fair and reasonable, taking into account the interests of both employers and employees.

The court found that the proposed agreement was made in good faith and contained all the required minimum terms. It was concluded that the agreement would likely have a significant impact on the industry, promoting productivity, efficiency, and economic growth. The court further determined that the agreement was fair and reasonable, considering the interests of both parties. As a result, the Fair Work Commission approved the Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

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