DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/344)

WETSPOT CONSOLIDATED (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TILELAYERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 25 FEBRUARY 2021

Application for approval of the WETSPOT CONSOLIDATED (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the WETSPOT CONSOLIDATED (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers 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 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.

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

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the WETSPOT CONSOLIDATED (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023. The dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009, particularly concerning the fairness and coverage of the terms and conditions it proposed.

The primary legal issues for the Commission to resolve included whether the agreement met the criteria for being a single, simple, and straightforward enterprise agreement, whether the terms were fair and reasonable, and whether the agreement appropriately covered the intended employees. A significant point of contention was the interpretation of the term "tile layer" within the context of the agreement, and whether the scope of the agreement adequately captured all relevant employees.

The Commission examined the evidence and submissions provided by both parties. It determined that the agreement was a single, simple, and straightforward enterprise agreement, as it covered a clear group of employees and contained terms and conditions that were easily understandable. The Commission found that the terms and conditions of the agreement were fair and reasonable, taking into account the nature of the work, the bargaining power of the parties, and the overall economic circumstances. The Commission also concluded that the agreement appropriately defined and covered the intended employees, namely those classified as tile layers.

Consequently, the Fair Work Commission approved the WETSPOT CONSOLIDATED (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Tilelayers Enterprise Agreement 2020-2023. The agreement was registered on 28 June 2021 and will be in effect until 27 June 2023.

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