DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4218)

PREMIUM PRECAST PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PRECAST PANEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 26 MARCH 2021

Application for approval of the PREMIUM PRECAST PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PREMIUM PRECAST PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Precast Panel 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] 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.

[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 2 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for the approval of the Subcontractors Precast Panel Enterprise Agreement 2020-2023 between PREMIUM PRECAST PTY LTD and the CFMEU (Victorian Construction and General Division). The agreement was entered into on 1 July 2020 and was due to expire on 30 June 2023. The CFMEU sought to have the agreement registered as a single-employer agreement under section 230 of the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement met the requirements of section 230 of the Fair Work Act, including whether it was in writing, contained the terms agreed to by the parties, and was a genuine agreement. The Commission also considered whether the agreement met the requirements of the new enterprise agreements framework under Part 3-2 of the Fair Work Act, including whether the agreement was made in good faith and for the purpose of creating an enterprise agreement.

The Commission found that the agreement met the requirements of section 230 of the Fair Work Act and was a genuine agreement. The Commission also found that the agreement met the requirements of the new enterprise agreements framework, including that it was made in good faith and for the purpose of creating an enterprise agreement. The Commission approved the agreement, noting that it provided for a fair and reasonable outcome for both parties.

The Commission's approval of the agreement was subject to certain conditions, including that the agreement be amended to include provisions for the protection of workers' health and safety and for the resolution of disputes. The Commission also noted that the agreement was subject to the provisions of the Building and Construction Industry (Precast Concrete Panel Installation) Award 2010, which applied to the work performed under the agreement.

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