DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4529)

ARGUS CONSTRUCTION SERVICES (VIC) PTY LTD T/AS ARGUS LABOUR HIRE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LABOUR HIRE 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 Labour Hire 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 Labour Hire 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] 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] 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.

[5] 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 parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union, and ARGUS Construction Services (Vic) Pty Ltd trading as ARGUS Labour Hire. The dispute was regarding the application for the approval of the Subcontractors Labour Hire Enterprise Agreement 2020-2023. This matter was heard in the Fair Work Commission of Australia. The central legal issues that the court had to address involved the terms and conditions outlined in the proposed enterprise agreement, particularly whether they met the requirements set forth under the Fair Work Act 2009. The court needed to ensure that the agreement was not unfair to any party and that it complied with the legislative standards.

The court meticulously examined the provisions of the agreement, considering the balance of rights and obligations between the employer and the employees, as well as the compliance with the procedural fairness. The court evaluated if the agreement contained the 'better off overall test', which mandates that the employees should be no worse off financially and should have improved conditions overall compared to the applicable award or agreement. Furthermore, the court assessed the procedural fairness of the bargaining process and whether the agreement was made in good faith. The court took into consideration the submissions from both parties, and the evidence provided, to reach its decision.

In its decision, the court found that the proposed enterprise agreement was fair and met all the legal requirements. The agreement was deemed to be beneficial for the employees, with improved conditions and financial benefits, thus satisfying the better off overall test. The court also confirmed that the agreement was made in good faith and that the bargaining process was procedurally fair. Consequently, the court approved the Subcontractors Labour Hire Enterprise Agreement 2020-2023.

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