DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4514)

WESTKON PRECAST CONCRETE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PRECAST PANEL ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the WESTKON PRECAST CONCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the WESTKON PRECAST CONCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel 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] Clause 21.1 of the agreement provides that “the Employer shall be, and remain during the life of this 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.

[4] 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.

[5] 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Westkon Precast Concrete Pty Ltd applied for the approval of a Subcontractors Precast Panel Enterprise Agreement 2020-2023. The agreement sought to establish terms and conditions for employees working in the precast concrete industry in Victoria. The dispute involved the union and the employer negotiating the terms and conditions of employment for subcontractors in the industry.

The primary legal issue before the Commission was whether the proposed agreement complied with the requirements of the Fair Work Act 2009, including provisions related to the registration of agreements and the application of the "better off overall test" (BOOT). This test ensures that employees are not worse off financially by the terms of the agreement compared to their previous conditions. Additionally, the Commission needed to determine if the agreement met the criteria for a "simple agreement," which allows for a streamlined approval process.

The Commission found that the proposed agreement did not meet the requirements for a simple agreement because it contained provisions that were not consistent with the model agreements outlined in the Fair Work Regulations. However, the Commission did approve the agreement, finding that it complied with the BOOT. The Commission considered the overall benefits to employees, including improved pay rates and conditions, and determined that these benefits outweighed any potential drawbacks. The Commission also noted that the agreement addressed specific industry needs and provided a fair and reasonable outcome for both parties.

The Fair Work Commission approved the Subcontractors Precast Panel Enterprise Agreement 2020-2023, effective from 1 July 2020, for a period of three years. The approved agreement sets out the terms and conditions of employment for subcontractors in the precast concrete industry in Victoria, providing for improved pay rates, conditions, and dispute resolution mechanisms.

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