DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4204)

TOOHEY'S FORM CRETE UNIT TRUST TAS TOOHEY'S FORM-CRETE 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, 26 MARCH 2021

Application for approval of the TOOHEY'S FORM CRETE UNIT TRUST Tas TOOHEY'S FORM-CRETE 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 TOOHEY’S FORM CRETE UNIT TRUST Tas TOOHEY’S FORM-CRETE 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 21.1 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 2 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Tas Toohey’s Form-Crete Pty Ltd, sought approval of a specific clause in the Subcontractors Formwork Enterprise Agreement 2020-2023, which was entered into between the applicant and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the interpretation and application of the Fair Work Act 2009 and the Fair Work Regulations 2009, specifically in relation to the process for approving enterprise agreements. The matter was heard by the Full Bench of the Fair Work Commission.

The primary legal issues revolved around the interpretation of the Fair Work Act and Regulations, particularly the requirements for approving an enterprise agreement and whether the particular clause in question was consistent with the provisions of the Act. The court had to determine if the clause met the statutory criteria for approval, which includes ensuring that the agreement does not have a detrimental effect on the health and safety of employees or the public.

The Full Bench concluded that the clause in question did not meet the statutory criteria for approval under the Fair Work Act. The court found that the clause did not sufficiently safeguard the health and safety of employees, as required by the legislation. Consequently, the application for approval of the clause was dismissed. The Full Bench's decision was based on a detailed analysis of the legal provisions and the implications of the clause on health and safety standards.

The final orders of the court included the dismissal of the application for approval of the specific clause in the Subcontractors Formwork Enterprise Agreement 2020-2023. The court directed that the agreement, as currently drafted, not be approved unless and until the clause in question was amended to comply with the statutory requirements.

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