DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4540)

CITYLINE SCAFFOLDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the CITYLINE SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the CITYLINE SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding 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 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 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

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) applied for approval of the CITYLINE SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The applicant argued that the agreement should be approved as a safety net agreement, as it provided for minimum wages and conditions for workers employed by Cityline Scaffolding Pty Ltd and its subcontractors. The applicant submitted that the agreement would facilitate industrial harmony and avoid industrial action, as it was a good faith negotiation between the parties. The applicant submitted that the agreement was a safety net agreement as it provided for minimum wages and conditions for workers employed by Cityline Scaffolding Pty Ltd and its subcontractors.

The respondent, Cityline Scaffolding Pty Ltd, opposed the application for approval of the agreement. The respondent argued that the agreement was not a safety net agreement as it did not provide for minimum wages and conditions for all workers employed by Cityline Scaffolding Pty Ltd and its subcontractors. The respondent submitted that the agreement was not in good faith as it did not reflect the true bargaining position of the parties. The respondent submitted that the agreement was not in the best interests of the employees as it did not provide for adequate protection of their wages and conditions.

The Commission considered the submissions of the parties and the evidence provided. The Commission found that the agreement provided for minimum wages and conditions for workers employed by Cityline Scaffolding Pty Ltd and its subcontractors. The Commission found that the agreement was a safety net agreement as it provided for minimum wages and conditions for workers employed by Cityline Scaffolding Pty Ltd and its subcontractors. The Commission found that the agreement was in good faith as it was a genuine attempt to reach an agreement between the parties. The Commission found that the agreement was in the best interests of the employees as it provided for adequate protection of their wages and conditions.

The Commission approved the agreement as a safety net agreement. The Commission made orders for the agreement to be registered and published. The Commission also made orders for the agreement to be in force from the date of the decision and to continue in force until 30 June 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