Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 4079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/4689)

BISHOP FAMILY TRUST (THE TRUSTEE FOR) T/AS BISHOP MASTER FINISHES AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ARCHITECTURAL FEATURES AND FITTINGS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 23 NOVEMBER 2022

Application for approval of the BISHOP FAMILY TRUST (THE TRUSTEE FOR) T/As BISHOP MASTER FINISHES and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the BISHOP FAMILY TRUST (THE TRUSTEE FOR) T/As BISHOP MASTER FINISHES and the CFMEU (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings 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.

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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 November 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between the Bishop Family Trust trading as Bishop Master Finishes and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Architectural Features and Fittings Enterprise Agreement 2020-2023. The application was heard in the Fair Work Commission. The central issue before the Commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This included assessing whether the agreement facilitated the efficient and productive operation of the enterprise, whether it provided for the appropriate balance of flexibility and certainty, and whether it promoted workplace harmony. The Commission found that the agreement did not appropriately address the issue of superannuation contributions, which is a mandatory subject under the Fair Work Act. The Commission was concerned that the agreement allowed for the possibility of no superannuation being paid to employees, which it considered contrary to the principles of fairness and equity.

The Court examined the provisions of the Fair Work Act and the Fair Work Regulations, as well as relevant case law. It considered that the agreement needed to provide for the payment of superannuation to employees, as mandated by the legislation. The Court noted that the proposed agreement did not explicitly require the payment of superannuation, leaving it to the discretion of the employer. The Court concluded that this was not in line with the statutory requirement for a fair and equitable agreement. The Court found that the agreement did not meet the necessary standards for approval under the Act. Consequently, the application for approval was dismissed. The Court ordered that the agreement be returned to the parties for amendment, specifically to include a provision mandating the payment of superannuation to employees.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established