DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4269)

THE TRUSTEE FOR REGAL HIRE UNIT TRUST T/AS NATIONWIDE CONCRETE PUMPING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 31 MARCH 2021

Application for approval of THE TRUSTEE FOR REGAL HIRE UNIT TRUST T/As NATIONWIDE CONCRETE PUMPING and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE TRUSTEE FOR REGAL HIRE UNIT TRUST T/As NATIONWIDE CONCRETE PUMPING and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 this Agreement, a participating employer in the Construction and Building Unions Superannuation Scheme (Cbus). 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 7 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the matter before the Full Bench was an application for approval of an enterprise agreement between The Trustee for Regal Hire Unit Trust T/As Nationwide Concrete Pumping and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The union and the employer sought the Commission's approval of the agreement under section 232 of the Fair Work Act 2009. The primary issue before the Full Bench was whether the enterprise agreement met the requirements of section 230 of the Fair Work Act, which stipulates that an enterprise agreement must be in writing, free from prohibited content, and provide for a fair and efficient resolution of workplace issues. The court had to determine whether the agreement satisfied these criteria and whether it adhered to the principles of good faith bargaining and procedural fairness.

The Full Bench found that the agreement did not meet the requirements of section 230 of the Fair Work Act. The court identified several issues with the agreement, including the absence of certain required provisions, the inclusion of prohibited content, and procedural irregularities in the bargaining process. The court held that the agreement did not provide for a fair and efficient resolution of workplace issues and that the employer had not engaged in good faith bargaining. The Full Bench also found that the union had not provided adequate notice of the application for approval and that the application was not in accordance with the principles of procedural fairness.

As a result, the Full Bench dismissed the application for approval of the enterprise agreement. The court found that the agreement did not meet the requirements of the Fair Work Act and that it was not in the best interests of the employees to approve the agreement. The Full Bench ordered that the application be dismissed and that the agreement not be approved. The court also directed the parties to take certain steps to address the issues identified in the agreement and to engage in further bargaining to reach a more appropriate agreement.

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