DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4343)

SIGMA STEEL CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STEELFIXING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the SIGMA STEEL CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the SIGMA STEEL CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing 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 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 20 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 applicant, the Construction, Forestry, Maritime, Mining and Energy Union, sought approval of the Subcontractors Steelfixing Enterprise Agreement 2020-2023 between SIGMA STEEL CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division). The application was made to the Fair Work Commission, which was required to determine whether the agreement was in the public interest and met the requirements of the Fair Work Act 2009. The legal issues before the Commission were whether the agreement was an enterprise agreement within the meaning of the Act, whether it was appropriately negotiated, and whether it met the public interest test. The Commission held that the agreement was appropriately negotiated and met the requirements of the Act. The agreement contained terms that were fair and reasonable, and the process by which it was negotiated was compliant with the Act. The Commission was satisfied that the agreement was in the public interest, and therefore approved the agreement.

The Commission found that the agreement was an enterprise agreement, as it related to the employees of SIGMA STEEL CONSTRUCTIONS PTY LTD and was negotiated in good faith by the parties. The Commission also found that the agreement was appropriately negotiated and met the requirements of the Act. The agreement contained terms that were fair and reasonable, and the process by which it was negotiated was compliant with the Act. The Commission was satisfied that the agreement was in the public interest, and therefore approved the agreement. The agreement provided for a range of terms and conditions of employment, including pay rates, hours of work, and leave entitlements. The Commission was satisfied that the agreement provided for a fair and reasonable outcome for both parties, and that it would promote harmonious, productive and cooperative workplace relations.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established