DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4034)

TAURUS COMMERCIAL INSTALLATIONS 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, 16 MARCH 2021

Application for approval of the TAURUS COMMERCIAL INSTALLATIONS 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 TAURUS COMMERCIAL INSTALLATIONS 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] 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 23 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in the case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), represented by its Victorian Construction and General Division, and Taurus Commercial Installations Pty Ltd, a company operating within the construction industry. The dispute centred on the approval of the Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, which had been negotiated between the CFMEU and Taurus Commercial Installations. The case was heard by the Fair Work Commission, Australia's national workplace relations tribunal.

The central legal issues revolved around whether the proposed enterprise agreement complied with the Fair Work Act 2009, particularly in terms of procedural fairness and substantive fairness. Procedural fairness required that the agreement was properly negotiated and that all necessary steps were taken to ensure genuine consultation. Substantive fairness involved examining whether the terms of the agreement were reasonable in the context of the broader industrial landscape and whether they provided for fair and reasonable terms and conditions of employment.

The Fair Work Commission examined the negotiation process and the contents of the agreement. It found that the agreement had been negotiated in good faith and that all procedural requirements had been met. The commission also assessed the substantive provisions of the agreement, considering factors such as the bargaining power of the parties, industry standards, and economic context. Ultimately, the commission concluded that the agreement was fair and reasonable, taking into account the interests of both employees and employers. The Fair Work Commission approved the enterprise agreement, finding it to meet the necessary criteria under the Fair Work Act 2009.

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