DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4074)

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

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

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

[1] An application has been made for approval of an enterprise agreement known as the KPI Traffic Control Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control 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 20 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 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.

[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

The applicants, KPI Traffic Control Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2020-2023, sought approval of the agreement from the Fair Work Commission. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), objected to the application on the basis that the agreement did not adequately protect employees’ interests. The matter was heard in the Fair Work Commission.

The central legal issues before the court were whether the agreement met the requirements of the Fair Work Act 2009, particularly regarding the protection of employees' interests, and whether the application met the criteria for approval under the Fair Work Act. The court had to consider whether the agreement provided for a fair and reasonable set of terms and conditions for the employees, and whether it complied with the procedural requirements for approval.

The Fair Work Commission determined that the agreement met the requirements of the Fair Work Act. The Commission found that the agreement provided for a fair and reasonable set of terms and conditions for the employees, and that it complied with the procedural requirements for approval. The Commission held that the agreement provided adequate protections for employees, including provisions for minimum wages, penalties for breaches, and dispute resolution mechanisms. The Commission also found that the application process was conducted in accordance with the relevant provisions of the Fair Work Act.

The Fair Work Commission approved the application for the agreement to be registered. The Commission determined that the agreement provided for a fair and reasonable set of terms and conditions for the employees and that it complied with the procedural requirements for approval. The agreement was registered under the Fair Work Act.

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