DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4164)

CONSTRUCTION ENGINEERING HOLDINGS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the CONSTRUCTION ENGINEERING HOLDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the CONSTRUCTION ENGINEERING HOLDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Builder 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 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.

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Construction Engineering Holdings Pty Ltd and CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023. Construction Engineering Holdings Pty Ltd objected to the application on the basis that the agreement was not a genuine enterprise agreement, did not meet the "better off overall test" and contained a provision that contravened the "no disadvantage test". The matter was heard in the Full Bench of the Fair Work Commission.

The Commission considered whether the agreement was a genuine enterprise agreement and whether it met the "better off overall test". The Commission also examined whether a particular clause in the agreement contravened the "no disadvantage test". The Commission noted that the agreement had been negotiated in good faith and that the parties had made a genuine attempt to reach an agreement. The Commission found that the agreement met the "better off overall test" and did not contravene the "no disadvantage test".

The Commission approved the agreement and made orders accordingly. The Commission found that the agreement was a genuine enterprise agreement and that it met the "better off overall test". The Commission also found that a particular clause in the agreement did not contravene the "no disadvantage test". The Commission approved the agreement and made orders for its registration.

The Commission ordered that the Construction Engineering Holdings Pty Ltd and CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023 be approved and registered. The Commission also ordered that the agreement be published on the Fair Work Commission's website. The Commission noted that the agreement would be in effect from 1 July 2020 until 30 June 2023.

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