DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4352)

CREATIVE PLASTERING GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the CREATIVE PLASTERING GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the CREATIVE PLASTERING GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 matter before the court involved an application for the approval of an enterprise agreement between the Creative Plastering Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The applicants sought the Fair Work Commission's endorsement of the agreement under the Fair Work Act 2009. The respondents included the Creative Plastering Group Pty Ltd, the CFMEU (Victorian Construction and General Division), and other interested parties. The dispute centred on whether the agreement met the legal requirements and standards set forth in the Fair Work Act and whether it was fair and reasonable for the employees involved.

The court had to determine if the agreement complied with the procedural and substantive requirements outlined in the Fair Work Act. This included verifying that the agreement was made without coercion, was free from any improper influence or pressure, and was negotiated in good faith. The court also had to assess whether the agreement was fair and reasonable, taking into account various factors such as the nature of the work, the economic circumstances, and the interests of the employees. Additionally, the court examined whether the agreement provided for appropriate protections for employees, including minimum wages and conditions, and whether it allowed for adequate dispute resolution mechanisms.

The court found that the agreement was procedurally sound and was negotiated in good faith. It noted that the agreement met all the necessary requirements under the Fair Work Act and provided for fair and reasonable terms for the employees. The court also highlighted that the agreement included provisions for minimum wages, conditions, and dispute resolution mechanisms, which were deemed adequate. Based on these findings, the court approved the agreement, stating that it was fair and reasonable and met all the legal standards set forth in the Fair Work Act.

The final orders of the court were that the Creative Plastering Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023 be approved and registered under the Fair Work Act. The agreement was to be binding on all parties from the date of approval, ensuring that it governed the employment terms and conditions for the specified period.

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