DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4116)

THE TRUSTEE FOR CAREY FRAWLEY FAMILY TRUST TAS NG LABOUR PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 22 MARCH 2021

Application for approval of THE TRUSTEE FOR CAREY FRAWLEY FAMILY TRUST Tas NG LABOUR PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the THE TRUSTEE FOR CAREY FRAWLEY FAMILY TRUST Tas NG LABOUR PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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). 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 29 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the case before the Fair Work Commission, the applicant, The Trustee for Carey Frawley Family Trust, trading as Tas Ng Labour Pty Ltd, sought approval for a new enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The matter was brought under the Fair Work Act 2009, with the aim of establishing the terms and conditions of employment for carpenters and joiners engaged by Tas Ng Labour Pty Ltd. The CFMEU contested the application, raising several objections that centred around the fairness and compliance of the proposed agreement with the Act's provisions.

The central legal issues the Commission needed to address were whether the agreement was made in accordance with the requirements of the Act, specifically regarding the process of good faith bargaining, and whether the agreement was fair and reasonable in its entirety. The Commission considered the evidence provided by both parties and the principles established in previous case law regarding enterprise agreements. The primary concern was whether the agreement reflected the outcome of genuine negotiations between the parties, and if it contained terms that were fair and reasonable.

After careful examination of the evidence, the Commission determined that the application should be approved. The Commission found that the process of negotiation leading to the agreement was conducted in good faith and that the terms of the agreement were fair and reasonable. The Commission noted that while the CFMEU had raised objections, these did not sufficiently undermine the overall fairness of the agreement. The Commission concluded that the proposed agreement met the statutory requirements and was consistent with the objectives of the Fair Work Act 2009.

The Commission's final order was that the application for approval of the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 be approved. This decision confirmed the agreement as a legally binding instrument governing the employment conditions between Tas Ng Labour Pty Ltd and the relevant employees represented by the CFMEU.

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