DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4337)

ALIMAK GROUP AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS MAST CLIMBING ACCESS EQUIPMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 6 APRIL 2021

Application for approval of the ALIMAK GROUP AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Mast Climbing Access Equipment Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the ALIMAK GROUP AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Mast Climbing Access Equipment 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 20.1 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 20.1 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 13 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 Fair Work Commission involved an application for approval of a proposed enterprise agreement between Alimak Group Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors. The proposed agreement, titled the "ALIMAK GROUP AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Mast Climbing Access Equipment Enterprise Agreement 2020-2023", was submitted for consideration. The legal issues centred on whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009, specifically regarding the scope of the agreement, the bargaining representative's authority, and whether the agreement met the standard criteria for approval.

The court examined the scope of the agreement to ensure it covered a defined group of employees and the terms were clear and unambiguous. It assessed whether the union had the requisite authority to negotiate and enter into the agreement on behalf of the employees. Furthermore, the court evaluated whether the proposed agreement met the requirements for simplicity, clarity, and practicality, and whether it provided for the resolution of disputes. The court also considered whether the agreement provided for a fair and reasonable outcome for the employees and employers.

After careful deliberation, the Fair Work Commission approved the proposed enterprise agreement. The court found that the agreement met all the statutory requirements, including the scope, authority, and criteria for approval. It was determined that the agreement was simple, clear, and practical, and it provided for the resolution of disputes. The commission concluded that the agreement provided for a fair and reasonable outcome for both the employees and the employer, and therefore granted approval. The final orders included the approval of the proposed enterprise agreement, effective from the date of the decision, and the agreement was to be registered with the Fair Work Commission.

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