DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/312)

JZ LEE GROUP AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 23 FEBRUARY 2021

Application for approval of the JZ LEE GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the JZ LEE GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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 2 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 for the approval of the JZ Lee Group and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023. The application was brought by the JZ Lee Group, a party to the proposed enterprise agreement, and the CFMEU, a registered trade union. The dispute centred on whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009. The Commission was required to determine whether the agreement provided fair and reasonable terms and conditions for employees, and whether it complied with the statutory requirements for enterprise agreements.

The primary legal issues that the Commission addressed were whether the agreement contained adequate provisions for the protection of employees' rights and conditions, and whether it complied with the "better off overall test" and "protected action provisions" as required by the Fair Work Act. The Commission also considered whether the agreement met the procedural requirements, including whether the agreement had been fairly negotiated and whether there was sufficient employee representation in the negotiation process. Furthermore, the Commission examined whether the agreement contained terms that were discriminatory or that contravened any other provisions of the Act.

In its decision, the Commission found that the proposed enterprise agreement met the necessary legal standards for approval. The Commission concluded that the agreement provided fair and reasonable terms and conditions for employees and was in compliance with the statutory requirements of the Fair Work Act. The Commission determined that the agreement included adequate provisions for the protection of employees' rights and conditions, and that it satisfied the "better off overall test" and the "protected action provisions". Additionally, the Commission found that the agreement had been fairly negotiated and that there was sufficient employee representation in the negotiation process. The Commission also determined that the agreement did not contain any terms that were discriminatory or that contravened any other provisions of the Act.

As a result, the Commission approved the JZ Lee Group and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023, effective from the date of the decision. The agreement now provides the terms and conditions of employment for employees covered by the agreement, and the parties are bound by its provisions.

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