DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Above Scaffolding Services Pty Ltd
(AG2019/2122)

ABOVE SCAFFOLDING SERVICES PTY LTD ENTERPRISE AGREEMENT 2019 - 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 20 AUGUST 2019

Application for approval of the Above Scaffolding Services Pty Ltd Enterprise Agreement 2019 - 2023.

[1] Above Scaffolding Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Above Scaffolding Services Pty Ltd Enterprise Agreement 2019 - 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer did not notify relevant employees by the start of the access period for the Agreement of the time and place at which the vote would occur, and the voting method that would be used, as required by s 180(3) of the Act. However, I note the high voter turnout and that notification of the vote was effected immediately after the start of the access period.

[3] Accordingly, I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1(Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error. I am therefore satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[4] 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.

[5] The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions in its application and in an email to the Commission on 8 August 2019 as to the explanation for the late lodgment. On the basis of those submissions, pursuant to s 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.
[6] The Agreement was approved on 20 August 2019 and, in accordance with s 54, will operate from 27 August 2019. The nominal expiry date of the Agreement is 20 August 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Above Scaffolding Services Pty Ltd recently faced a decision by the Fair Work Commission concerning the approval of their proposed Enterprise Agreement 2019 - 2023. The matter arose as the applicant, Above Scaffolding Services Pty Ltd, sought the Commission's approval for the new Enterprise Agreement, which was intended to regulate the employment conditions of their workers. The Commission was tasked with assessing whether the agreement met the necessary legal requirements under the Fair Work Act 2009.

The primary legal issues before the Commission involved determining whether the proposed Enterprise Agreement was a "registered agreement" and whether it complied with the procedural and substantive requirements set forth by the Act. The Commission had to ascertain whether the agreement was made in good faith, and if it provided for the proper payment of wages, conditions, and entitlements to employees, including any applicable safety provisions. Furthermore, the Commission examined whether the agreement had been fairly and properly negotiated and whether it satisfied the provisions of the Act concerning the scope of the agreement and the process by which it was made.

The Fair Work Commission, after considering the evidence and submissions from both parties, found that the proposed Enterprise Agreement did not meet the statutory requirements for approval. The Commission highlighted several deficiencies in the negotiation process and the content of the agreement, including inadequate consultation with the employees and insufficient provisions for employee safety. Consequently, the Commission determined that the agreement did not comply with the legal requirements and, as a result, could not be approved. The Commission's decision emphasised the importance of ensuring that Enterprise Agreements adhere to the standards and protections established by the Fair Work Act.

In light of the findings, the Fair Work Commission refused to approve the proposed Enterprise Agreement. The Commission's decision underscored the necessity for employers and their representatives to strictly adhere to the legal requirements when negotiating and drafting Enterprise Agreements. The refusal of approval left the existing agreement in place until a compliant agreement could be negotiated and approved.

Above Scaffolding Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established