DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4168)

PG STEELFIXING 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, 24 MARCH 2021

Application for approval of the PG STEELFIXING 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 PG STEELFIXING 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 31 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application for the approval of the PG Steelfixing Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023. The application was made under section 231 of the Fair Work Act 2009, and was heard by the Fair Work Commission. The dispute centred on whether the agreement met the requirements for registration under the Act, including that it provided for the proper protection of employees' interests and did not include any terms that were contrary to public policy.

The legal issues the court was required to decide included whether the agreement met the criteria for registration under the Fair Work Act, and whether the agreement provided for the proper protection of employees' interests. The court was also required to consider whether any terms of the agreement were contrary to public policy, and whether the agreement complied with the requirements of the Act in terms of its content and form. The court had to ensure that the agreement provided for fair and reasonable terms and conditions of employment, and that it did not undermine the rights and protections afforded to employees under the Act.

The court found that the agreement met the criteria for registration under the Fair Work Act. It determined that the agreement provided for the proper protection of employees' interests, and that it did not include any terms that were contrary to public policy. The court was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, and that it complied with the requirements of the Act in terms of its content and form. The court found that the agreement was in the best interests of the employees, and that it would provide for their proper protection and promotion of their welfare. The application for approval of the agreement was therefore granted.

The final orders of the court included the approval of the PG Steelfixing Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023, and the registration of the agreement under the Fair Work Act. The agreement was to be in effect from 1 July 2020 until 30 June 2023, and was to apply to all employees of PG Steelfixing Pty Ltd who were covered by the agreement. The court's decision provided certainty and clarity for both the employer and the employees, and ensured that the agreement was fair and reasonable, and in the best interests of all parties.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established