DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4535)

SKILL LABOUR SERVICE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the SKILL LABOUR SERVICE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the SKILL LABOUR SERVICE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 21.1 of the agreement provides that “the Employer shall be, and remain during the life of [the] 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.

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the Subcontractors Concrete Placement Enterprise Agreement 2020-2023 by the Skill Labour Service Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was brought under the Fair Work Act 2009 and was heard in the Fair Work Commission. The dispute centred on whether the proposed agreement met the criteria for registration as a single-employer enterprise agreement, including whether it contained all the terms required by the Act, if it was properly negotiated, and if it adhered to the good faith bargaining principles.

The court was required to determine if the agreement contained all necessary terms, including those mandated by the Fair Work Act, such as minimum wages and penalty rates, leave provisions, and other standard employment conditions. Additionally, the court needed to assess if the agreement was the product of genuine negotiations between the parties and whether the process observed the principles of good faith bargaining. The court also had to consider if the agreement complied with the requirements for independent assessment and approval by the Fair Work Commission.

In its reasoning, the court examined the negotiation process and the content of the agreement. The court found that the agreement contained all the required terms and was the result of genuine negotiations between the parties. It was noted that the process of negotiation followed the principles of good faith bargaining, and the agreement was subjected to independent assessment. The court was satisfied that the agreement met all the legislative requirements for approval and, accordingly, approved the application.

The Fair Work Commission approved the Subcontractors Concrete Placement Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was registered as a single-employer enterprise agreement, binding the parties and applicable to the relevant employees. The decision was made in accordance with the Fair Work Act 2009 and the principles of fair work.

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