DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4323)

RIGID SCAFFOLDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the RIGID SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the RIGID SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding 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 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 20.1 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

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CaseChat Overview and Summary

The matter involved an application for the approval of the RIGID SCAFFOLDING PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission. The legal issues before the Commission centred on whether the proposed enterprise agreement was fair and reasonable, and whether it complied with the statutory requirements outlined in the Fair Work Act 2009. The Commission had to examine the agreement's provisions in terms of its fairness, including the impact on the employees, the balance of interests between the employer and the union, and whether it met the minimum standards set out in the Act.

The Fair Work Commission found that the proposed agreement was fair and reasonable. The Commission noted that the agreement provided for a balanced set of terms and conditions that met the needs of both the employer and the employees. It found that the agreement did not disadvantage any party, and that it met the statutory minimum standards. The Commission also considered the negotiation process and found it to be fair and reasonable. The Commission concluded that the agreement was not only fair and reasonable but also in the best interests of the employees.

In light of the findings, the Fair Work Commission approved the RIGID SCAFFOLDING PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The agreement was deemed to be effective from the date of the approval and would remain in force until the end of the specified term. The approval was granted on the condition that the agreement be registered with the Fair Work Commission within the prescribed 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