DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4451)

CONSTRUCTING MELBOURNE 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, 13 APRIL 2021

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

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in this case are the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Constructing Melbourne Pty Ltd. The dispute revolves around the approval of a proposed enterprise agreement between the CFMEU and Constructing Melbourne Pty Ltd. The case was heard by the Fair Work Commission, Australia's workplace relations tribunal. The primary legal issue before the Commission was whether the proposed enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided fair and reasonable terms for the employees, if it was free from coercion and undue influence, and if it complied with all relevant provisions of the Act.

The Commission carefully examined the proposed agreement, taking into account the submissions made by both the CFMEU and Constructing Melbourne Pty Ltd. The Commission considered various factors, such as the agreement's impact on employee rights, the process through which the agreement was negotiated, and the fairness of the terms and conditions outlined in the document. After thorough consideration, the Commission concluded that the proposed enterprise agreement did meet the necessary criteria for approval. It was found to provide fair and reasonable terms for the employees, was free from coercion and undue influence, and complied with all relevant provisions of the Fair Work Act 2009.

As a result of the Commission's decision, the proposed enterprise agreement between Constructing Melbourne Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023 was approved. The agreement will now serve as a binding contract between the parties, governing the terms and conditions of employment for the employees covered by the agreement. This decision highlights the importance of ensuring that enterprise agreements meet the necessary criteria for approval, in order to protect the rights of employees and maintain a fair and balanced workplace.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established