DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4452)

PORTELLI GROUP AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the PORTELLI GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PORTELLI GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating 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 application before the Fair Work Commission (FWC) was made by the Portelli Group and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023. The parties sought approval of the enterprise agreement in accordance with the Fair Work Act 2009. The FWC was required to determine whether the application met the requirements of the Act and whether the agreement was in the best interests of the employees covered by it.

The primary legal issues before the FWC were whether the application complied with the procedural requirements set out in the Fair Work Act and whether the agreement met the substantive criteria for approval. This included assessing whether the agreement was made in good faith, provided for a fair and efficient workplace, and was consistent with the overarching principles of the national workplace relations system. The FWC also considered whether the agreement was likely to achieve the intended outcomes for the employees and whether it was consistent with relevant industrial instruments.

In its decision, the FWC determined that the application was procedurally compliant and that the agreement met the substantive criteria for approval. The FWC found that the agreement was made in good faith, provided for a fair and efficient workplace, and was consistent with the overarching principles of the national workplace relations system. The FWC was satisfied that the agreement was likely to achieve the intended outcomes for the employees and was consistent with relevant industrial instruments. The FWC approved the enterprise agreement and made orders accordingly.

The FWC approved the Portelli Group and CFMEU (Victorian Construction and General Division) Subcontractors Painting & Decorating Enterprise Agreement 2020-2023, with the agreement to take effect from 1 January 2020. The FWC noted that the agreement provided for a fair and efficient workplace, with provisions that addressed key issues such as wages, working conditions, and dispute resolution. The FWC was satisfied that the agreement was in the best interests of the employees covered by it and was consistent with the overarching principles of the national workplace relations system. The FWC made orders approving the enterprise agreement and setting out the effective date of the agreement.

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