DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/216)

E & S REINFORCEMENT (OLD) TRUST THE TRUSTEE FOR TAS E & S REO GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STEELFIXING ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the E & S REINFORCEMENT (OLD) TRUST THE TRUSTEE FOR Tas E & S REO GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the E & S REINFORCEMENT (OLD) TRUST THE TRUSTEE FOR Tas E & S REO GROUP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing 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 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

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CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application for approval of the E & S Reinforcement (Old) Trust, trustee for Tas E & S Reo Group Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023. The dispute arose from the negotiation and proposed terms of the enterprise agreement, specifically concerning the conditions and rights of subcontractors within the steelfixing industry.

The primary legal issues the Fair Work Commission was required to address included the fairness and reasonableness of the proposed agreement under the Fair Work Act 2009. This encompassed the assessment of whether the agreement adequately covered terms and conditions, such as wages, hours of work, leave entitlements, and dispute resolution mechanisms, in a manner that balanced the interests of both the employer and the employees. Additionally, the Commission had to consider whether the agreement complied with the procedural requirements for its approval, including the appropriate negotiation processes and the representation of employee interests.

In its decision, the Commission found that the proposed agreement was fair and reasonable, taking into account the economic context and the specific needs of the steelfixing industry. The Commission acknowledged the efforts of both parties to reach a consensus and highlighted the agreement's provisions that addressed the rights and conditions of subcontractors effectively. The Commission also determined that the negotiation process adhered to the necessary procedural requirements, and that the agreement appropriately represented the interests of the employees. Consequently, the Fair Work Commission approved the enterprise agreement.

The Fair Work Commission's final orders included the approval of the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023, effective from the date of the decision, subject to the terms and conditions outlined in the agreement.

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