DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/3947)

SK FAMILY TRUST (THE TRUSTEE FOR) TAS SK BUILDING CONSTRUCTION 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, 9 MARCH 2021

Application for approval of the SK FAMILY TRUST (THE TRUSTEE FOR) Tas SK BUILDING CONSTRUCTION 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 SK FAMILY TRUST (THE TRUSTEE FOR) Tas SK BUILDING CONSTRUCTION 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] 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.

[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] The Construction, Forestry, 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 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 applicant, Tas SK Building Construction Pty Ltd, sought approval of an enterprise agreement under the Fair Work Act 2009. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application on the grounds that the agreement did not meet the 'better off overall test'. The case was heard in the Fair Work Commission.

The central issue before the court was whether the proposed enterprise agreement was fair and met the 'better off overall test', ensuring that employees were not worse off than they would be under the applicable law. The court had to consider the financial and non-financial benefits of the agreement, weighing these against the potential detriments.

The court found that the proposed agreement was fair and met the 'better off overall test'. It noted that the agreement provided for a range of benefits, including improved wages, leave entitlements, and working conditions. The court found that these benefits outweighed any potential detriments, and that the agreement was in the best interests of the employees. The court approved the application, allowing the agreement to come into effect.

The Fair Work Commission approved the application, allowing the Subcontractors Caulking and Sealing Enterprise Agreement 2020-2023 to come into effect. The court ordered that the agreement be registered and enforced as a binding enterprise agreement under the Fair Work Act 2009. The decision provides a useful example of how the 'better off overall test' is applied in the context of enterprise agreements.

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