Alliance Scaffolding Pty Ltd

[2022] FWCA 2950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Alliance Scaffolding Pty Ltd

(AG2022/3408)

Alliance Scaffolding Pty Ltd General Onsite Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 26 AUGUST 2022

Application for approval of the Alliance Scaffolding Pty Ltd General Onsite Agreement 2022

An application has been made for approval of an enterprise agreement known as the Alliance Scaffolding Pty Ltd General Onsite Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Alliance Scaffolding Pty Ltd. 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.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

Clause 29(b) of the Agreement states that another day may be taken as a public holiday by arrangement between the parties, while s 115(3) of the Act appears to limit this to agreement with a singular employee.
Clause 11 deals with abandonment of employment but appears to remove an employee’s entitlement to notice of termination of employment as provided by the NES.[1]

The Australian Workers’ 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 2 September 2022. The nominal expiry date of the Agreement is 26 August 2025.

DEPUTY PRESIDENT

[1] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Alliance Scaffolding Pty Ltd for the approval of the Alliance Scaffolding Pty Ltd General Onsite Agreement 2022. The primary issue revolved around whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and if it was fair and reasonable for the employees covered by the agreement. The Commission was tasked with examining the agreement's provisions to ensure it met the necessary criteria for approval.

The central legal issues before the Commission included assessing whether the proposed agreement provided for the minimum entitlements required by the Fair Work Act, including minimum wages, penalty rates, leave entitlements, and other benefits. The Commission also needed to determine if the agreement was procedurally fair, meaning that it was negotiated in good faith, and whether the agreement was reasonable in the broader sense, taking into account the interests of both employers and employees. The fairness and reasonableness of the agreement were evaluated in the context of broader economic conditions and the specific circumstances of the scaffolding industry.

The Fair Work Commission found that the proposed agreement largely complied with the statutory requirements and was fair and reasonable. The Commission noted that the agreement provided for minimum entitlements that were consistent with the award and provided for additional benefits that were considered reasonable in the circumstances. The Commission was satisfied that the agreement was the product of good faith bargaining and that it was not contrary to the public interest. The Commission approved the Alliance Scaffolding Pty Ltd General Onsite Agreement 2022, effective from the date of the decision. This approval allows the agreement to be registered and enforceable, providing a framework for employment conditions in the scaffolding industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established