DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4515)

LIONEX CONCRETE PUMPING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 14 APRIL 2021

Application for approval of the LIONEX CONCRETE PUMPING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the LIONEX CONCRETE PUMPING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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 21 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval for the LIONEX CONCRETE PUMPING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The dispute centred on the terms and conditions of employment for concrete pumping subcontractors working for Lionex, and the union sought to establish a new enterprise agreement to govern these conditions.

The legal issues before the Commission included whether the proposed agreement provided for a fair and reasonable terms of employment, and whether it complied with the requirements of the Fair Work Act 2009. The Commission had to consider the balance of rights and obligations between the parties, and whether the agreement provided for a safety net of minimum terms and conditions.

The Commission found that the proposed agreement provided for a fair and reasonable terms of employment, and that it complied with the requirements of the Fair Work Act. The agreement provided for a safety net of minimum terms and conditions, and the parties had negotiated in good faith to reach an agreement. The Commission approved the proposed agreement, which will now govern the terms and conditions of employment for concrete pumping subcontractors working for Lionex.

The Commission's decision highlights the importance of good faith negotiations and the need for enterprise agreements to provide for a safety net of minimum terms and conditions. The decision also reinforces the role of the Fair Work Commission in approving enterprise agreements and ensuring that they are fair and reasonable.

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