DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4275)

EMPIRE CONSORTIUM GROUP PTY LTD 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 EMPIRE CONSORTIUM GROUP PTY LTD 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 EMPIRE CONSORTIUM GROUP PTY LTD 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 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 21 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

The case before the Fair Work Commission involved an application for the approval of the Empire Consortium Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The applicant, Empire Consortium Group Pty Ltd, sought the approval of the enterprise agreement, which was negotiated with the union. The union, represented by the CFMEU, did not oppose the application but submitted a notice of non-opposition, indicating that they did not have any objections to the terms of the agreement.

The primary legal issue before the Commission was whether the enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. This involved assessing whether the agreement contained all the mandatory terms prescribed by the Act and whether it was fairly negotiated. The Commission had to determine if the agreement provided for fair and reasonable terms and conditions, and if it adhered to the requirements of the Fair Work (Registered Organisations) Act 2009. Furthermore, the Commission examined if the agreement was consistent with the principles of the industrial relations system, ensuring that it did not undermine the rights and protections of employees.

The Commission found that the enterprise agreement complied with all statutory requirements and was fairly negotiated. It contained all the mandatory terms prescribed by the Fair Work Act 2009 and adhered to the principles of the industrial relations system. The Commission noted the union's notice of non-opposition and the absence of any objections from the union. Consequently, the Commission approved the agreement, finding it to be fair and reasonable in all respects. The Commission concluded that the agreement would provide for the proper regulation of working conditions and terms of employment for the employees covered by the agreement.

The Fair Work Commission approved the Empire Consortium Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023, effective from the date of the approval. The agreement was deemed to be fairly negotiated and to contain all the mandatory terms required by the Fair Work Act 2009. The approval of the agreement ensures that the employees covered by the agreement will have fair and reasonable terms and conditions of employment.

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