DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4456)

THE TRUSTEE FOR LUX EMPLOYMENTS TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PRECAST PANEL ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of THE TRUSTEE FOR LUX EMPLOYMENTS TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE TRUSTEE FOR LUX EMPLOYMENTS TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel 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] 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.

[4] 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.

[5] 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 Federal Court heard an application for the approval of the Subcontractors Precast Panel Enterprise Agreement 2020-2023 between The Trustee for Lux Employments Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred on whether the agreement met the necessary criteria for approval under the Fair Work Act 2009, particularly focusing on its compliance with the requirements for enterprise agreements and its implications for the parties involved. The court was tasked with examining the agreement's adherence to the procedural and substantive standards set forth in the legislation.

The primary legal issue before the court was whether the agreement was appropriately certified as a single-interest enterprise agreement and whether it complied with the procedural requirements for such agreements. The court also needed to assess whether the agreement was made in good faith and whether it met the criteria for minimal disruption to the parties' operations. Furthermore, the court had to consider whether the agreement provided for fair and reasonable terms and conditions of employment, taking into account the economic and social context.

The court found that the agreement was certified correctly as a single-interest enterprise agreement, and the procedural requirements were met. The certification process was deemed to be conducted in good faith, and the agreement was found to comply with the statutory provisions. The court concluded that the agreement was fair and reasonable, providing for adequate terms and conditions that balanced the interests of both parties. The agreement was also found to be minimally disruptive, ensuring that the operations of the involved parties were not unduly affected. Based on these findings, the court approved the agreement.

The court's final order was the approval of the Subcontractors Precast Panel Enterprise Agreement 2020-2023. This decision confirmed the agreement's validity and allowed it to be implemented, ensuring that the terms and conditions it set forth would govern the employment relationship between The Trustee for Lux Employments Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the specified period.

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