DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/210)

JBT HOLDINGS PTY LTD T/AS PHOENIX TRAFFIC MANAGEMENT PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LABOUR HIRE ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the JBT HOLDINGS PTY LTD T/As PHOENIX TRAFFIC MANAGEMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the JBT HOLDINGS PTY LTD T/As PHOENIX TRAFFIC MANAGEMENT PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire 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] 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.

[3] 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.

[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 23 February 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of an enterprise agreement between JBT Holdings Pty Ltd, trading as Phoenix Traffic Management Pty Ltd, and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023. The application was made under section 231 of the Fair Work Act 2009. The union argued that the agreement should be approved as a transitional arrangement agreement, given the changes in employment conditions and the need for a fair and efficient agreement to cover the specified period.

The central legal issue before the Commission was whether the enterprise agreement constituted a transitional arrangement agreement, as claimed by the union. This required the Commission to consider the provisions of section 174 of the Fair Work Act, which allows for the approval of such agreements under specific circumstances. The Commission had to determine if the agreement met the criteria for being a transitional arrangement agreement, including whether it was necessary to make a fair and efficient agreement and whether it provided for a period no longer than three years.

In rendering its decision, the Commission carefully examined the terms of the agreement and the circumstances surrounding its creation. It considered the changes in the workforce and employment conditions, the need for a fair and efficient agreement, and the period for which the agreement was proposed. The Commission found that the agreement did indeed meet the criteria for a transitional arrangement agreement, as it was necessary to address the changes in employment conditions and provided for a period of three years, which was permissible under the Act. Consequently, the Commission approved the agreement as a transitional arrangement agreement.

The final orders of the Commission were that the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023, as proposed, be approved as a transitional arrangement agreement under section 174 of the Fair Work Act 2009. The agreement was to be registered with the Fair Work Commission and would be in effect from the date of the Commission's approval.

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