DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/3986)

PRECISION CAULKING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CAULKING AND SEALING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 11 MARCH 2021

Application for approval of the PRECISION CAULKING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PRECISION CAULKING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing 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 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

[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 18 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Precision Caulking Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. This agreement was proposed as a new enterprise agreement to replace an existing one and to address specific working conditions and remuneration for employees within the caulking and sealing sector. The legal issues primarily revolved around whether the agreement met the statutory requirements under the Fair Work Act 2009, particularly in terms of its procedural fairness, genuine bargaining, and the provision of adequate protections and benefits for the employees.

The Commission meticulously reviewed the process by which the agreement was negotiated and the contents of the agreement itself. It examined whether the union and the employer had genuinely bargained and whether the agreement contained the necessary minimum terms and conditions as stipulated by the Act. The Commission also assessed if the agreement was made in good faith and if it provided fair and reasonable protections for employees. In its reasoning, the Commission highlighted that the agreement demonstrated a comprehensive process of negotiation and consultation, and it contained provisions that were equitable and comprehensive enough to meet the statutory requirements. The Commission found that the agreement was procedurally fair, genuinely negotiated, and provided adequate protections and benefits for the employees, thus meeting the criteria for approval.

Consequently, the Fair Work Commission approved the Precision Caulking Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023. The decision confirmed that the agreement complied with the legislative requirements and was therefore suitable for implementation. The approval of the agreement signifies a legally binding framework for the working conditions and remuneration of employees within the specified industry for the ensuing 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