DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4033)

PMJ STEEL FIXING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STEELFIXING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 16 MARCH 2021

Application for approval of the PMJ STEEL FIXING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PMJ STEEL FIXING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing 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 23 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, PMJ Steel Fixing Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), sought approval of a proposed enterprise agreement from the Fair Work Commission. The dispute centred on whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009. The Fair Work Commission, led by Deputy President T Batten, was tasked with determining the application.

The primary legal issue before the Commission was whether the proposed agreement met the requirements under section 231 of the Act. Specifically, the Commission had to consider whether the agreement provided for fair and reasonable terms and conditions, including provisions relating to the classification of employees and their remuneration. Additionally, the Commission needed to assess whether the agreement complied with the good faith bargaining provisions and whether there were any procedural irregularities in the bargaining process.

The Commission found that the proposed agreement met the requirements under section 231 of the Act. It determined that the agreement provided for fair and reasonable terms and conditions, including provisions relating to the classification of employees and their remuneration. The Commission also found that the agreement complied with the good faith bargaining provisions and that there were no procedural irregularities in the bargaining process. Consequently, the Commission approved the proposed enterprise agreement.

The Fair Work Commission approved the PMJ Steel Fixing Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023, finding it met the requirements of the Fair Work Act 2009. This decision ensures that the agreement will govern the terms and conditions of employment for the relevant employees for the specified period.

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