DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4167)

CREMA CONSTRUCTIONS 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 Crema Constructions 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 Crema Constructions 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 21.1 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 applicant, Crema Constructions Pty Ltd, sought approval for a proposed enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), Victorian Construction and General Division. The matter was heard in the Fair Work Commission (FWC). The applicant argued that the proposed agreement was appropriate for the workforce and aligned with the objectives of the Fair Work Act 2009 (Cth). The CFMEU, on the other hand, contested the agreement on various grounds, including that it failed to provide adequate pay and conditions for workers.

The central legal issue before the FWC was whether the proposed enterprise agreement met the statutory requirements set out in the Fair Work Act 2009 (Cth). The FWC had to consider whether the agreement provided fair and reasonable terms and conditions for the employees and whether it aligned with the broader objectives of the Fair Work Act, including promoting high levels of employment and productivity. Additionally, the FWC needed to determine if the agreement was made in good faith and whether it had been negotiated genuinely.

After reviewing the submissions and evidence presented by both parties, the FWC determined that the proposed agreement met the necessary criteria. The FWC found that the agreement provided fair and reasonable terms and conditions for the employees and aligned with the objectives of the Fair Work Act. The FWC also concluded that the agreement had been negotiated genuinely and in good faith. Consequently, the FWC approved the proposed enterprise agreement between Crema Constructions Pty Ltd and the CFMEU, Victorian Construction and General Division for the period 2020-2023.

The FWC's decision was based on a comprehensive analysis of the evidence and submissions presented by both parties. The FWC concluded that the proposed agreement provided adequate pay and conditions for the employees and was consistent with the objectives of the Fair Work Act. The FWC also found that the agreement had been negotiated genuinely and in good faith, and therefore, the FWC approved the proposed enterprise agreement.

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