DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4152)

SG FORMWORK 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, 24 MARCH 2021

Application for approval of the SG FORMWORK 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 SG FORMWORK 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] The Clause 21 of the agreement provides that “the Employer shall be, and remain during the life of [the] 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] 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.

[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 the SG Formwork Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The application was brought before the Fair Work Commission, with SG Formwork Pty Ltd as the applicant and the CFMEU as the respondent. The dispute centred around whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue before the court was to determine if the proposed agreement was in compliance with the procedural and substantive requirements of the Fair Work Act. This included assessing whether the agreement had been fairly negotiated and if it adhered to the provisions regarding employee protection and fairness. The court had to examine the specific terms of the agreement and consider if they met the necessary standards for approval.

In reaching its decision, the Fair Work Commission examined the negotiation process and the content of the proposed agreement. The court found that the agreement had been fairly negotiated, with both parties demonstrating a commitment to reaching a resolution. The court also considered the substantive provisions of the agreement, including wages, conditions, and dispute resolution mechanisms. The Commission concluded that the agreement met all the necessary requirements for approval, and it was in the best interests of the employees involved.

The Fair Work Commission approved the SG Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. This decision was based on the fair negotiation process and the agreement's compliance with the Fair Work Act. The approved agreement now sets the terms and conditions of employment for the relevant employees, providing a framework for their work within the specified period.

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