DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4517)

THE TRUSTEE FOR PAOLO RUSSO FAMILY TRUST TAS NEXT GENERATION 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 TRUSTEE FOR PAOLO RUSSO FAMILY TRUST Tas NEXT GENERATION 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 TRUSTEE FOR PAOLO RUSSO FAMILY TRUST Tas NEXT GENERATION 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

The Federal Court was presented with an application for the approval of a new enterprise agreement between Tas NEXT GENERATION CONCRETE PUMPING PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), representing the workers. The CFMEU sought to have the agreement approved, which was set to cover the period from 2020 to 2023. The application was brought before the court to ensure compliance with the Fair Work Act 2009 and to confirm that the agreement met the necessary criteria for approval.

The legal issues central to this case revolved around whether the proposed agreement adhered to the statutory requirements outlined in the Fair Work Act, particularly concerning procedural fairness and the terms and conditions of employment. The court had to scrutinise the negotiation process and the content of the agreement to determine if it was fairly and properly made, and if it met the standards for being a "better off overall test" (BOOT) agreement.

In its decision, the court examined the negotiation process and the provisions of the agreement. It considered whether the agreement was made in good faith, whether it was negotiated in a manner that ensured fairness, and whether the terms and conditions were reasonable. The court also assessed the evidence provided by both parties, including the testimonies and submissions, to determine if the agreement was likely to be beneficial to the employees overall. After thorough deliberation, the court found that the agreement was fairly and properly made and met all the necessary criteria for approval. Consequently, the court granted the application, approving the subcontractor concrete pumping enterprise agreement for the specified period.

The court's final order was the approval of the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023, as presented by Tas NEXT GENERATION CONCRETE PUMPING PTY LTD and the CFMEU. This decision effectively endorsed the terms and conditions outlined in the agreement, ensuring that they would be binding on the parties involved for the duration of the agreement.

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