DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4762)

PRO-TECH HOARDINGS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 3 MAY 2021

Application for approval of the PRO-TECH HOARDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PRO-TECH HOARDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 10 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, on behalf of its members, applied to the Fair Work Commission for the approval of the PRO-TECH HOARDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The respondent, PRO-TECH HOARDINGS PTY LTD, did not oppose the application but expressed concerns about the financial impact of the proposed agreement on their business. The primary legal issue before the court was whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine whether the agreement was in the public interest and whether it complied with the provisions of the Act concerning good faith bargaining and the protection of employees' rights.

The court found that the agreement was in the public interest and met all the necessary criteria for approval. The agreement had been the result of good faith bargaining between the parties, and it provided for fair and reasonable terms and conditions for employees. The court also found that the agreement did not adversely affect the financial viability of the respondent and provided adequate protection for employees' rights. The court was satisfied that the agreement provided for appropriate levels of minimum wages, entitlements, and conditions that were in line with industry standards. Furthermore, the court noted that the agreement contained provisions for dispute resolution and the protection of employees' rights, which were consistent with the objectives of the Fair Work Act.

The court approved the PRO-TECH HOARDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, effective from the date of the decision. The court noted that the agreement was a fair and reasonable document that provided for appropriate levels of minimum wages, entitlements, and conditions for employees. The court also found that the agreement was in the public interest and did not adversely affect the financial viability of the respondent. The court's decision provides certainty and stability for both the employer and employees in the industry.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established