DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4325)

OAK & CO COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 7 APRIL 2021

Application for approval of the OAK & CO COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the OAK & CO COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 14 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants in this case, OAK & CO COMMERCIAL PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), sought approval of their enterprise agreement from the Fair Work Commission. The dispute centred on the terms and conditions outlined within the proposed Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The Fair Work Commission was tasked with determining whether the agreement met the necessary criteria under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement provided for a fair and efficient workplace, adhered to the Fair Work Act's objectives, and complied with the Commission's procedural requirements. The Commission also had to consider if the agreement was genuinely negotiated and whether it contained appropriate protections for employees. The primary concern was ensuring that the agreement did not adversely affect the employees' rights or working conditions.

In delivering its decision, the Fair Work Commission assessed the proposed agreement against statutory criteria. The Commission noted that the agreement appeared to be fairly negotiated and contained provisions that aligned with the objectives of the Fair Work Act. The Commission determined that the agreement was likely to promote a fair and efficient workplace, did not compromise employees' rights, and complied with procedural requirements. Consequently, the Commission approved the application for the agreement.

The Fair Work Commission has approved the Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, between OAK & CO COMMERCIAL PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The decision is based on the findings that the agreement was fairly negotiated, aligns with the objectives of the Fair Work Act, and provides appropriate protections for employees.

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