DECISION

Fair Work Act 2009
s.185—Enterprise agreement

APS Industrial Services Pty Ltd T/A APS Industrial Services
(AG2018/6330)

APS INDUSTRIAL SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CONTRACT SCAFFOLD ENTERPRISE AGREEMENT 2016 - 2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 23 NOVEMBER 2018

Application for approval of the APS INDUSTRIAL SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the APS INDUSTRIAL SERVICES PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by APS Industrial Services Pty Ltd T/A APS Industrial Services. 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] The Construction, Forestry, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 November 2018. The nominal expiry date of the Agreement is 31 October 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, APS Industrial Services Pty Ltd, trading as APS Industrial Services, applied for the approval of the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018. The CFMEU sought amendments to the agreement, particularly in relation to the definition of 'employee' and provisions regarding redundancies and dismissals. The dispute centred on the interpretation and application of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009, focusing on whether the proposed agreement met the legal requirements for approval.

The primary legal issues before the Commission were whether the proposed agreement accurately defined the term 'employee' and whether the provisions concerning redundancies and dismissals complied with the relevant legislation. The CFMEU argued that the definition of 'employee' was too narrow, potentially excluding certain workers who should be covered by the agreement. Additionally, the CFMEU contended that the redundancy and dismissal provisions did not align with the statutory protections afforded to employees under the Fair Work Act.

The Commission examined the agreement's provisions and the arguments presented by both parties. It concluded that the definition of 'employee' was sufficiently broad to encompass all eligible workers and that the redundancy and dismissal provisions were consistent with the statutory requirements. The Commission found that the agreement met the necessary criteria for approval, ensuring that it provided fair and reasonable terms and conditions of employment. Consequently, the application for approval was granted, and the agreement was approved as a certified agreement.

The final orders included the approval of the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018, effective from the date of the Commission's decision. The agreement was to apply to all employees of APS Industrial Services covered by the agreement, providing them with the terms and conditions set out in the approved document. The Commission also directed that the agreement be registered with the Fair Work Commission and published on its website to ensure transparency and accessibility for all parties involved.

APS Industrial Services Pty Ltd T/A APS Industrial Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established