DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4450)

CLIFTON FORMWORK (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 13 APRIL 2021

Application for approval of the CLIFTON FORMWORK (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the CLIFTON FORMWORK (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 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 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 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 involved an application for the approval of the Clifton Formwork (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The Commission was required to determine whether the agreement met the statutory requirements under the Fair Work Act 2009. The legal issues central to this case were whether the agreement contained the necessary good faith bargaining provisions, was free from prohibited content, and complied with the requirements for minimum entitlements. The Commission had to consider whether the agreement fairly reflected the bargaining positions of both parties, did not include any prohibited terms, and ensured that employees were not disadvantaged in terms of their basic rights and entitlements.

The Fair Work Commission approached the evaluation of the agreement methodically, ensuring that it adhered to the principles of good faith bargaining and the statutory minimum standards. The Commission confirmed that the agreement demonstrated evidence of genuine negotiations and mutual agreement between the parties. It found that the agreement contained all the necessary good faith bargaining provisions and was free from any prohibited content. Furthermore, the Commission was satisfied that the agreement met the statutory minimum entitlements, ensuring that employees were not left worse off in terms of their basic rights and protections. Given these findings, the Commission approved the agreement, recognising that it was a fair and reasonable outcome for both the employer and the employees.

In light of the findings, the Fair Work Commission granted approval to the Clifton Formwork (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. This decision was made effective from the date of the approval, ensuring that the agreement would apply as a registered enterprise agreement under the Fair Work Act 2009. The approval signifies the Commission's endorsement of the agreement as a fair and reasonable document that reflects the bargaining positions of both parties and complies with all statutory requirements.

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