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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval for the Breakout Scaffolding Australia Pty Ltd and CFMEU ACT Enterprise Agreement 2021. The applicant union, representing workers in the construction industry, argued that the agreement met the necessary criteria for approval under the Fair Work Act 2009. Breakout Scaffolding Australia Pty Ltd, a scaffolding company, did not oppose the application but raised concerns about specific provisions within the agreement.

The primary legal issues before the Commission were whether the agreement contained all the required terms under the Fair Work Act and whether it met the standard industrial requirements. This involved examining provisions related to wages, conditions, dispute resolution, and other employment terms. The Commission had to determine if these terms were fair and reasonable, considering the balance of rights and obligations between the parties and the overall impact on the workforce.

The Commission found that the agreement was comprehensive and included all necessary terms. It noted that the provisions were fair and reasonable, taking into account the specific circumstances of the industry and the bargaining positions of the parties. The Commission acknowledged the concerns raised by Breakout Scaffolding Australia Pty Ltd but concluded that they did not outweigh the benefits of the agreement to the employees. Consequently, the Commission approved the agreement.

The Commission issued an order approving the Breakout Scaffolding Australia Pty Ltd and CFMEU ACT Enterprise Agreement 2021. This approval is effective from the date specified in the agreement, and the terms and conditions set out within the agreement are to be applied to the employees of Breakout Scaffolding Australia Pty Ltd.

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