DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4222)

K.O STEEL FIXING 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, 26 MARCH 2021

Application for approval of the K.O STEEL FIXING 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 K.O STEEL FIXING 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 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 20 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for a proposed enterprise agreement between K.O Steel Fixing Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023. The dispute involved the terms and conditions of employment for workers within the steelfixing industry, including issues such as wages, hours of work, and other employment conditions. The Commission was tasked with determining whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed agreement complied with the provisions of the Fair Work Act. This included examining whether the agreement provided for fair and reasonable terms and conditions, whether it had been genuinely negotiated, and whether it adhered to the requirements for direct bargaining. Additionally, the Commission needed to assess whether the agreement was in the best interests of the employees it covered.

After careful consideration of the arguments presented by both parties, the Commission found that the proposed agreement did not meet the statutory requirements for approval. The Commission highlighted that the agreement contained provisions that were not genuinely negotiated and did not provide for fair and reasonable terms and conditions. Furthermore, the Commission determined that the agreement did not adequately address the best interests of the employees, particularly in relation to the payment of wages and the provision of work conditions. Consequently, the Commission did not grant approval for the proposed enterprise agreement.

In summary, the Fair Work Commission declined to approve the proposed enterprise agreement, citing deficiencies in genuine negotiation, fairness, and the best interests of the employees. This decision underscores the importance of ensuring that enterprise agreements meet the stringent legal standards set out in the Fair Work Act.

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