DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/201)

ADCON RESOURCES VIC PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 16 FEBRUARY 2021

Application for approval of the ADCON RESOURCES VIC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the ADCON RESOURCES VIC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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] 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, 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 February 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 applicants, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and ADCON Resources VIC PTY LTD, sought approval of the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission. The primary legal issue the court had to resolve was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement was fairly negotiated, if it complied with the relevant sections of the Act, and if it was in the best interests of the employees.

The court examined the process by which the agreement was negotiated, the contents of the agreement, and the interests of the employees involved. The court found that the agreement was the result of genuine negotiations between the parties and contained provisions that were fair and reasonable. The court also determined that the agreement complied with the statutory requirements set out in the Fair Work Act 2009 and that it was in the best interests of the employees. The court therefore approved the enterprise agreement.

The court ordered that the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 between ADCON Resources VIC PTY LTD and the CFMEU (Victorian Construction and General Division) be approved and registered under the Fair Work Act 2009. The agreement was to commence on the first day of the fourth calendar month following the registration date and remain in effect until the end of the third calendar year following that date, unless terminated earlier in accordance with the agreement's 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