DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4156)

A2B PERSONNEL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) INDIGENOUS EMPLOYMENT & TRAINING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the A2B PERSONNEL PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Employment & Training Enterprise Agreement 2020-2023.

[1] An application has been made for approval of a greenfields agreement known as the A2B PERSONNEL PTY LTD and the CFMEU (Victorian Construction and General Division) Indigenous Employment & Training Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by the Construction, Forestry, Maritime, Mining and Energy Union.

[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. In particular, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] 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.

[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] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54(1) 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 matter before the Fair Work Commission involved an application for approval of the A2B Personnel Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Indigenous Employment & Training Enterprise Agreement 2020-2023. The dispute centred around whether the agreement met the statutory requirements under the Fair Work Act 2009, particularly in relation to its provisions for Indigenous employees and the process by which the agreement was formed.

The primary legal issues the Commission had to address were whether the agreement was a genuine enterprise agreement, whether it provided for the appropriate minimum terms and conditions of employment, and whether it had been fairly and appropriately negotiated. The Commission also needed to determine whether the process for negotiating the agreement was procedurally fair and whether the agreement contained provisions that were necessary to ensure its effectiveness and fairness.

In its decision, the Commission found that the agreement was indeed a genuine enterprise agreement and had been fairly negotiated. The Commission considered the evidence provided by both parties, which included the negotiation process, the parties' conduct, and the content of the agreement itself. The Commission found that the agreement provided for the appropriate minimum terms and conditions of employment, and that it contained provisions that were necessary to ensure its effectiveness and fairness. The Commission also found that the process for negotiating the agreement was procedurally fair, and that the agreement met all the statutory requirements under the Fair Work Act 2009.

As a result, the Commission approved the A2B Personnel Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Indigenous Employment & Training Enterprise Agreement 2020-2023. The agreement will now be registered with the Fair Work Commission and will apply to the relevant employees for the period specified in the 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