Master Builders has been advised by a number of members that whilst the CFMEU is admitting that the CFMEU/Breakaway Group EBA is not compliant with the proposed Building Code 2014, they are now claiming that contractors can have the agreement terminated by simply making application to the Fair Work Commission (FWC) and advising that the Building Code 2014 has taken effect. This is nonsense.

Section 223 of the Fair Work Act 2009 deals with the circumstances in which the Fair Work Commission (FWC) must terminate an enterprise agreement that has not passed its nominal expiry date. In summary, FWC must be satisfied that:

  • each employee has had reasonable opportunity to decide whether to terminate the agreement; and
  • a majority of the employees who cast a valid vote approve the termination; and
  • there are no other reasonable grounds for believing that employees have not agreed to the termination; and
  • it is appropriate to approve the termination taking into account the views of the employee organisation covered by the agreement – i.e. the CFMEU.

The question of whether or not the Building Code 2014 has taken effect is therefore not a direct consideration for the FWC in making a decision to terminate an EBA.

In addition, even if a contractor is ultimately successful in having FWC formally terminate an EBA – it appears that the CFMEU’s current intention in Victoria is to simply restart the negotiation process from scratch. This can be contrasted with the more common sense approach agreed by the CFMEU in other states, of simply agreeing to vary the EBA to make it compliant with Building Code 2014.

Master Builders therefore continues to advise members of the attendant risk of signing onto the CFMEU/Breakaway Group EBA, and remind members holding the extant Industry EBA 2011-2015 (and who entered into it prior to 24 April 2014) that they remain compliant with both the current Building Code 2013 and the proposed Building Code 2014.

Members, particularly those reliant on federally funded work, are encouraged to advise their employees that the CFMEU’s current approach serves only to punish those contractors (and their employees) who enter into the CFMEU/Breakaway deal, by putting future work at risk.

Members seeking further information should contact the IR Department on (03) 9411 4560.