DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4397)

THE TRUSTEE FOR JC SCAFFOLDING TRUST TAS JC SCAFFOLDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of THE TRUSTEE FOR JC SCAFFOLDING TRUST Tas JC SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE TRUSTEE FOR JC SCAFFOLDING TRUST Tas JC SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding 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 20.1 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 20.1 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

The matter before the Fair Work Commission involved an application for the approval of a subcontractor's enterprise agreement between Tas JC Scaffolding Pty Ltd, the trustee for the JC Scaffolding Trust, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The union sought to establish an agreement that would govern the employment conditions of scaffolders working for Tas JC Scaffolding Pty Ltd. The dispute centred on whether the proposed agreement met the requirements set out in the Fair Work Act 2009 and provided adequate protections for the workers involved.

The primary legal issues before the Commission were whether the agreement provided for the minimum terms and conditions as required by the Fair Work Act, and whether it was made in good faith and without coercion. The Commission needed to assess whether the agreement included all the mandated minimum terms and conditions, whether it was made without coercion, and whether it provided for appropriate protections and entitlements for the employees. Furthermore, the Commission had to determine if the agreement was consistent with the broader public interest and whether it could be considered a safety net agreement.

After reviewing the submissions and evidence from both parties, the Commission found that the proposed agreement met the statutory requirements and was made in good faith. The Commission determined that the agreement provided for all the minimum terms and conditions, including appropriate pay rates, leave entitlements, and dispute resolution mechanisms. The Commission also found that the agreement did not involve any form of coercion and provided for adequate protections for the workers. Consequently, the Commission approved the subcontractor's enterprise agreement, deeming it to be a safety net agreement that would benefit the employees involved.

The Fair Work Commission approved the subcontractor's enterprise agreement, recognising it as a safety net agreement that met the requirements of the Fair Work Act. The agreement was to govern the employment conditions of scaffolders working for Tas JC Scaffolding Pty Ltd, and was found to provide for all the minimum terms and conditions, as well as appropriate protections and entitlements for the workers. The Commission's decision ensures that the employees will benefit from the agreed-upon terms and conditions, while also upholding the principles of good faith bargaining and the broader public interest.

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