DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division
(AG2021/4458)

MELBOURNE CONSTRUCT SOLUTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 13 APRIL 2021

Application for approval of the MELBOURNE CONSTRUCT SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the MELBOURNE CONSTRUCT SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 - Manufacturing Division. 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 21.1 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 21.1 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, 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 April 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 - Manufacturing Division sought approval of a proposed enterprise agreement between Melbourne Construct Solutions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The dispute arose over the terms and conditions of employment, particularly the classification of employees and the application of the enterprise agreement to workers engaged through labour hire arrangements. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement provided for the fair and reasonable terms and conditions of employment, including the classification of employees and the application of the agreement to workers engaged through labour hire. The Commission had to ensure that the agreement was not contrary to public policy and that it complied with the Fair Work Act. Additionally, the Commission needed to assess whether the agreement adequately protected the rights of employees and provided for their fair and reasonable remuneration and conditions.

The Fair Work Commission found that the proposed enterprise agreement met the requirements for approval. The Commission concluded that the agreement provided for fair and reasonable terms and conditions of employment, including the classification of employees and the application of the agreement to workers engaged through labour hire. The Commission determined that the agreement was not contrary to public policy and complied with the Fair Work Act. The Commission also found that the agreement adequately protected the rights of employees and provided for their fair and reasonable remuneration and conditions. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Melbourne Construct Solutions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023, effective from 1 July 2020. The approval ensures that the terms and conditions of employment provided for in the agreement are fair and reasonable, protecting the rights of employees and providing for their remuneration and conditions.

Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established