Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 1648

[2021] FWCA 1648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4242)

BREAKOUT SCAFFOLDING AUSTRALIA PTY LTD AND CFMEU ACT ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 29 MARCH 2021

Application for approval of the Breakout Scaffolding Australia Pty Ltd and CFMEU ACT Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Breakout Scaffolding Australia Pty Ltd and CFMEU ACT Enterprise Agreement 2021 (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] Clause 19 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 19 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 April 201. The nominal expiry date of the Agreement is 30 May 2021.

COMMISSIONER

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