DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4223)

SOLID STEEL CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STEELFIXING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the SOLID STEEL CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the SOLID STEEL CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing 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). 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 5 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in this case are the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Solid Steel Constructions Pty Ltd. The dispute is centred around the application for the approval of the Subcontractors Steelfixing Enterprise Agreement 2020-2023. The Fair Work Commission, as the relevant court, was tasked with determining the fairness of the agreement under the Fair Work Act 2009. The CFMEU sought approval for the agreement, while Solid Steel Constructions Pty Ltd argued that certain provisions of the agreement were unfair and should not be approved.

The primary legal issues before the court were whether the agreement met the criteria for approval under the Fair Work Act, particularly focusing on the provisions that were contested by Solid Steel Constructions Pty Ltd. The court had to examine the fairness of the agreement, considering the balance of rights and obligations, the nature of the enterprise, and the effect of the agreement on employees. Furthermore, the court needed to determine if any provisions were contrary to public policy or were otherwise unfair.

The court concluded that the agreement was fair and approved it. The reasoning was based on the comprehensive review of the agreement's provisions, taking into account the nature of the industry and the specific needs of the parties involved. The court found that the provisions contested by Solid Steel Constructions Pty Ltd did not contravene the criteria for fairness and did not unduly harm the employees. Consequently, the court ruled in favour of the CFMEU and approved the Subcontractors Steelfixing Enterprise Agreement 2020-2023.

The final orders of the court included the approval of the Subcontractors Steelfixing Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement was to be registered and would govern the employment conditions for the specified period. The court's decision provided clarity and certainty for both the CFMEU and Solid Steel Constructions Pty Ltd, ensuring that the agreement would be binding and enforceable.

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