DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/351)

D-WAY CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the D-WAY CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the D-WAY CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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, 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

In the matter of the Fair Work Act 2009, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and D-Way Constructions Pty Ltd sought approval of their Subcontractors Formwork Enterprise Agreement 2020-2023. The Fair Work Commission (FWC) was the forum for this application. The CFMEU, as the union representing the employees, and D-Way Constructions, the employer, jointly submitted the agreement for approval under the Fair Work Act 2009. The agreement was aimed at regulating the terms and conditions of employment for formwork subcontractors working in the construction industry.

The legal issues before the FWC involved determining whether the proposed agreement met the criteria for approval under section 234 of the Fair Work Act. The key considerations included whether the agreement provided for a fair and efficient system of classification and remuneration, and whether it ensured appropriate flexibility and efficiency in the workplace. Additionally, the FWC needed to assess if the agreement met the 'better off overall test', ensuring that employees would be no worse off financially and would have a reasonable level of job security and other benefits.

After thorough consideration, the FWC approved the agreement. The Commission found that the proposed terms and conditions provided a fair and efficient system for classification and remuneration. It was determined that the agreement ensured appropriate flexibility and efficiency within the workplace while meeting the better off overall test. The FWC noted the agreement’s provisions for adequate job security and additional benefits for the employees, concluding that it would not result in employees being worse off financially. Consequently, the FWC granted the approval of the Subcontractors Formwork Enterprise Agreement 2020-2023.

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