DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction Forestry Mining and Energy Union Construction
(AG2021/308)

THE TRUSTEE FOR ALL MELBOURNE CONSTRUCTIONS (VIC) TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 23 FEBRUARY 2021

Application for approval of The Trustee for All Melbourne Constructions (VIC) Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as The Trustee for All Melbourne Constructions (VIC) Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 Mining and Energy Union Construction. 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 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.

[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 2 March 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

In the Fair Work Commission, the Construction Forestry Mining and Energy Union Construction, as a registered organisation, lodged an application for the approval of The Trustee for All Melbourne Constructions (VIC) Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The Trustee for All Melbourne Constructions (VIC) Trust, representing several companies in the construction industry, contested the application. The dispute centred around the terms and conditions stipulated in the proposed enterprise agreement, particularly whether these terms were fair and reasonable for the employees involved.

The legal issues before the Commission were whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This involved examining the balance of rights, obligations, and entitlements within the agreement, and whether it provided for the protection of employees' rights, fair wages, and conditions of employment. Additionally, the Commission had to determine if the agreement was made in good faith and without coercion, and whether it would promote harmonious, productive, and cooperative workplace relations.

After reviewing the submissions and evidence from both parties, the Commission found that the proposed agreement did meet the necessary criteria for approval. The terms were deemed fair and reasonable, providing adequate protections and benefits for the employees. The Commission also concluded that the agreement was made in good faith and without coercion, and it would promote harmonious and productive workplace relations. As a result, the application was approved, and the enterprise agreement was registered.

The final orders of the Commission included the registration of the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, effective from the date of the decision. The Trustee for All Melbourne Constructions (VIC) Trust was directed to comply with the terms of the agreement, and the union was authorised to take any necessary steps to enforce the agreement's provisions. The decision marked the formal recognition of the terms and conditions outlined in the enterprise agreement for the duration specified.

Construction Forestry Mining and Energy Union Construction

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established