DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4767)

TRIO PLUMBING (AUSTRALIA) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CLADDING INSTALLATION ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the TRIO PLUMBING (AUSTRALIA) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the TRIO PLUMBING (AUSTRALIA) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation 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 the TRIO PLUMBING (AUSTRALIA) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission, which is responsible for the regulation of workplace agreements in Australia. The primary dispute centred on the terms and conditions set out in the proposed enterprise agreement between the employer and the union representing the workers. The union sought to ensure that the agreement provided adequate protections and benefits for the employees involved in cladding installation.

The legal issues that the commission had to address included whether the agreement complied with the requirements of the Fair Work Act 2009, particularly in terms of its fairness, reasonableness, and compliance with the relevant award provisions. The commission also had to consider whether the agreement met the standards of procedural fairness and whether it was genuinely negotiated between the parties. Additionally, the commission examined whether the agreement provided for appropriate protections for employees, including minimum wage rates, leave entitlements, and other conditions of employment.

In its decision, the commission found that the proposed enterprise agreement was fair and reasonable, taking into account the specific circumstances of the industry and the bargaining positions of the parties. The commission was satisfied that the agreement had been genuinely negotiated and met the procedural fairness requirements. Furthermore, the commission determined that the agreement provided for adequate protections and benefits for the employees, in line with the relevant award provisions and the broader objectives of the Fair Work Act. Consequently, the commission approved the application for the enterprise agreement.

The final orders of the commission included the approval of the TRIO PLUMBING (AUSTRALIA) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Cladding Installation Enterprise Agreement 2020-2023, with the agreement to take effect from the date of the decision. This outcome ensures that the terms and conditions of employment for the workers in the cladding installation sector are regulated and protected under the approved enterprise agreement.

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