DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4531)

ARGUS CONSTRUCTION SERVICES (VIC) PTY LTD T/AS ARGUS LABOUR HIRE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TRAFFIC CONTROL ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the ARGUS CONSTRUCTION SERVICES (VIC) PTY LTD T/AS ARGUS LABOUR HIRE and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2020-2023.

[1] An application has been made for approval of a greenfields agreement known as the ARGUS CONSTRUCTION SERVICES (VIC) PTY LTD T/AS ARGUS LABOUR HIRE and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

[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. In particular, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[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] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54(1) 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 Fair Work Commission (FWC) was asked to approve an enterprise agreement between ARGUS Construction Services (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement covered traffic control workers employed by subcontractors of ARGUS, and was for the period 2020-2023. The union applied for the FWC to approve the agreement under section 235 of the Fair Work Act 2009 (Cth), claiming that it was a bargain genuinely made between the parties, and that it complied with the good faith bargaining provisions of the Act.

The main issue before the FWC was whether the agreement was genuinely made by the parties, and whether it complied with the good faith bargaining requirements. The employer argued that the union had not genuinely bargained with it, and had instead pressured it into accepting certain terms. The union argued that it had genuinely bargained with the employer and that the employer had agreed to the terms. The FWC needed to determine whether the union had genuinely bargained in good faith and whether the employer had genuinely agreed to the terms of the agreement.

The FWC found that the union had genuinely bargained in good faith and that the employer had genuinely agreed to the terms of the agreement. The FWC rejected the employer's claims that the union had pressured it into accepting certain terms, finding that the union had acted reasonably throughout the bargaining process. The FWC also found that the agreement complied with the good faith bargaining provisions of the Act, and was therefore eligible for approval. The FWC approved the agreement, noting that it provided for a fair and reasonable outcome for both parties.

The FWC's decision to approve the agreement is a reminder of the importance of genuine bargaining in the enterprise agreement process. The FWC found that the union had genuinely bargained in good faith, and that the employer had genuinely agreed to the terms of the agreement. This decision provides guidance to employers and unions on the requirements of genuine bargaining, and the importance of acting in good faith throughout the bargaining process.

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