DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4165)

STANMORE CERAMICS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TILELAYERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 24 MARCH 2021

Application for approval of the STANMORE CERAMICS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the STANMORE CERAMICS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers 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 31 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application for the approval of a subcontractor tilelayers enterprise agreement between STANMORE CERAMICS PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically the Victorian Construction and General Division. The application was brought under the Fair Work Act 2009, seeking the court's approval of the agreement which outlines terms and conditions for subcontractors working in the tilelaying industry. The court's role was to ensure that the agreement met the legislative requirements and did not undermine the fundamental principles of the Fair Work Act.

The primary legal issues the court addressed included whether the agreement was appropriately negotiated, whether it contained the necessary terms and conditions, and if it complied with the provisions of the Fair Work Act. The court also had to consider if the agreement unfairly disadvantaged any party, and if it contained any terms that were contrary to public policy. Additionally, the court examined if the agreement had been genuinely bargained for and if it provided for the proper enforcement of its terms.

In reaching its decision, the court examined the negotiation process and found that it was conducted in good faith and that all parties had an opportunity to participate in the discussions. The court determined that the agreement contained all the required terms and conditions, and that it did not unfairly disadvantage any party or contain terms that were contrary to public policy. The court also found that the agreement provided for proper enforcement mechanisms and was genuinely bargained for. Based on these findings, the court approved the subcontractor tilelayers enterprise agreement as it met all the necessary legal requirements.

As a result of the court's decision, the STANMORE CERAMICS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023 was approved and is now legally binding on the parties involved. The agreement sets out the terms and conditions of employment for subcontractors in the tilelaying industry, providing a framework for fair and consistent working conditions.

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