DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4394)

LINK STONE WORKS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STONEMASONS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 8 APRIL 2021

Application for approval of the LINK STONE WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Stonemasons Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the LINK STONE WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Stonemasons 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 15 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for the LINK STONE WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Stonemasons Enterprise Agreement 2020-2023. The applicant argued that the agreement was fair and reasonable, meeting all the statutory requirements for approval. The respondent, LINK STONE WORKS PTY LTD, opposed the application, asserting that the proposed agreement contained terms and conditions that were unfair and not reasonably capable of being characterised as a fair and reasonable enterprise agreement.

The central legal issue before the Commission was whether the terms and conditions of the proposed agreement were fair and reasonable. This involved an examination of the provisions against the Fair Work Act 2009, including whether the agreement met the requirements for coverage, the terms themselves, and whether the agreement was appropriately negotiated. The Commission had to assess whether the agreement provided for fair and reasonable pay and conditions, and whether it was appropriately balanced between the interests of employers and employees.

In its decision, the Fair Work Commission found that while many aspects of the agreement were fair and reasonable, certain provisions were not. The Commission highlighted that several clauses concerning the classification and remuneration of employees, particularly those related to the duties of stonemasons, were unfair. The Commission concluded that these terms did not provide for fair and reasonable pay and conditions. As a result, the Commission did not approve the proposed agreement, citing these unfair provisions as the basis for its decision.

The Fair Work Commission determined that the application for approval of the LINK STONE WORKS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Stonemasons Enterprise Agreement 2020-2023 was not to be approved due to the identified unfair terms. The Commission provided detailed reasons for its decision and indicated that the parties may revise the agreement and reapply for approval once the unfair provisions were addressed.

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