DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4354)

KEYSTONE VICTORIA 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 KEYSTONE VICTORIA 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 KEYSTONE VICTORIA 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 of the agreement provides that “the Employer shall be, and remain during the life of this 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 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

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CaseChat Overview and Summary

The case before the court involved an application for the approval of the Keystone Victoria Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The primary parties in dispute were the Keystone Victoria Pty Ltd, a construction company, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically its Victorian Construction and General Division. The nature of the dispute centred around the terms and conditions outlined in the proposed enterprise agreement, which the parties sought to have officially recognised and enforced.

The legal issues that the court had to address were whether the proposed agreement met the statutory requirements for enterprise agreements under the Fair Work Act 2009, and if it complied with the procedural requirements laid out by the Fair Work Commission. Key points of contention included the agreement's compliance with the ‘better off overall test’ (BOOT), ensuring that the terms of the agreement were at least as favourable as the applicable award or other relevant agreements, and whether the necessary consultation processes had been adequately followed. The court also needed to consider whether the agreement was in the interests of the employees covered by it.

In its reasoning, the court examined the procedural fairness of the negotiation and drafting process of the agreement, as well as the substantive provisions of the agreement itself. The court found that the agreement satisfied the procedural requirements, including the BOOT, and that it was fair and reasonable in the circumstances. The court was satisfied that the agreement was not only in line with the statutory framework but also appropriately balanced the interests of both employers and employees. Consequently, the court approved the enterprise agreement, recognising it as a legally binding document between the parties involved.

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