DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4073)

KPI LABOUR HIRE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LABOUR HIRE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 18 MARCH 2021

Application for approval of the KPI Labour Hire Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the KPI Labour Hire Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire 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] 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 25 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for the approval of the KPI Labour Hire Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023. The application was contested by the employer, which argued that certain provisions in the agreement were not appropriate. The dispute centred on the interpretation and applicability of various provisions within the proposed agreement, particularly those relating to employee entitlements, classification, and working conditions.

The central legal issues before the commission involved determining whether the provisions in the proposed enterprise agreement were consistent with the relevant federal legislation, specifically the Fair Work Act 2009. The commission needed to assess whether the provisions met the "better off overall test" (BOOT) and whether they complied with the Fair Work (Registered Organisations) Act 2009. Additionally, the commission had to consider the implications of any provisions that might contravene the principles of mutuality and good faith bargaining.

The commission found that the majority of the provisions in the agreement met the BOOT and were consistent with the relevant legislation. The contested provisions were examined closely, and the commission concluded that they did not contravene any statutory requirements. The commission also found that the agreement embodied the principles of mutuality and good faith bargaining, as it was the result of negotiations between the parties. The commission approved the enterprise agreement, noting the importance of the collective bargaining process in achieving fair and reasonable outcomes for both employees and employers.

As a result of the commission's decision, the KPI Labour Hire Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023 was approved. The agreement now serves as the legally binding framework for the employment conditions of the employees covered by the agreement, effective from the date of approval.

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