DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4360)

COLAB FACADE 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 COLAB FACADE 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 COLAB FACADE 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 case involves an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and COLABA Facade Pty Ltd for the approval of a new enterprise agreement. The application was heard in the Fair Work Commission, which has jurisdiction over the approval of enterprise agreements under the Fair Work Act 2009. The dispute centred on whether the agreement, which was submitted for approval, met the requirements of the Act, particularly in terms of its compliance with the provisions that ensure fairness and reasonableness.

The court was required to decide whether the agreement contained all the mandated terms and conditions, including those relating to minimum rates of pay, classification of employees, and other employment terms. Additionally, the court had to ensure that the agreement did not contain any terms that would be considered contrary to the public interest or that would undermine the rights of employees. The specific issues included whether the agreement appropriately addressed the classification of employees and the terms and conditions that were negotiated between the parties.

The Fair Work Commission determined that the agreement met the requirements of the Act. The Commission found that all mandated terms were included, and that the agreement was fair and reasonable. The Commission was satisfied that the agreement did not contain any terms that would be contrary to the public interest. The Commission noted that the agreement provided for fair and reasonable terms and conditions for employees, and that it was negotiated in good faith. The Commission approved the agreement, finding that it met the legislative criteria for approval.

The final orders included the approval of the COLABA Facade Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The Commission determined that the agreement was appropriate and would provide for fair and reasonable terms and conditions for employees. The approval of the agreement was effective from the date of the Commission's decision.

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