DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4544)

THE TRUSTEE FOR S & N UNIT TRUST TAS S & N CRANES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TOWER CRANE RIGGERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 15 APRIL 2021

Application for approval of THE TRUSTEE FOR S & N UNIT TRUST Tas S & N CRANES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as TRUSTEE FOR S & N UNIT TRUST Tas S & N CRANES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers 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 22 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The dispute in question involved the trustee for the S & N Unit Trust, Tas S & N Cranes Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023. The matter was brought before the Fair Work Commission to seek approval for the proposed enterprise agreement. The central legal issues before the court were whether the proposed agreement met the formal requirements for approval under the Fair Work Act 2009 and whether it contained all the mandated minimum terms and conditions as specified by the Act.

The Commission assessed the agreement against the criteria outlined in the Fair Work Act, focusing on its compliance with the procedural and substantive requirements. The court considered the bargaining process, the representation of the parties, and the fairness of the agreement's terms. It was also required to examine whether the agreement provided for adequate minimum terms and conditions, including provisions related to wages, hours of work, and other employment-related matters. Ultimately, the Commission determined that the agreement was procedurally valid and contained the requisite minimum terms and conditions. It was satisfied that the agreement was made in good faith and that the bargaining process was fair and effective.

Consequently, the Fair Work Commission approved the proposed enterprise agreement. The decision was grounded in the evidence provided, which demonstrated that the agreement met all legislative requirements and was fair and reasonable. The court found that the agreement provided for a balanced distribution of benefits and obligations between the employer and the employees, ensuring it adhered to the principles of procedural and substantive fairness. As a result, the agreement was certified and registered, becoming legally binding on the parties involved.

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