DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4455)

TUBEWAY 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, 13 APRIL 2021

Application for approval of the TUBEWAY 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 TUBEWAY 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 [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 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 20 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Tubeway Scaffolding Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of a Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The agreement sought to set out the terms and conditions of employment for employees engaged by Tubeway in the scaffolding industry, with a particular focus on subcontractors.

The legal issues before the Commission involved whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly whether it contained the minimum terms and conditions mandated by the Act, and whether it was genuinely negotiated and free from any improper influence or coercion. The Commission had to consider whether the agreement was in the best interests of the employees it covered and whether it would promote harmonious, productive and cooperative workplace relations.

After considering the evidence and submissions presented by the parties, the Commission found that the proposed agreement contained the minimum terms and conditions required by the Act and was genuinely negotiated. The Commission also found that the agreement was in the best interests of the employees and would promote harmonious, productive and cooperative workplace relations. The Commission approved the agreement, subject to certain minor modifications to ensure compliance with the Act.

The Commission's decision provides guidance to employers and unions in the scaffolding industry on the requirements for a valid enterprise agreement and the importance of genuine negotiation and compliance with the Act. The approved agreement sets out the terms and conditions of employment for employees engaged by Tubeway and its subcontractors in the scaffolding industry, providing certainty and stability for both employers and employees.

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