DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Caledonia Scaffolding Services Pty Ltd T/A Caledonia Scaffolding Services
(AG2017/3021)

CALEDONIA SCAFFOLDING SERVICES PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	CANBERRA, 1 NOVEMBER 2017

Application for approval of the Caledonia Scaffolding Services Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Caledonia Scaffolding Services Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Caledonia Scaffolding Services Pty Ltd T/A Caledonia Scaffolding Services. The Agreement is a single enterprise agreement.

[2] Upon receipt of the application I sought clarification from the Applicant about the applicable Modern Award for the purposes of the Better Off Overall Test (BOOT) for the classifications ‘Yard Hand’ and ‘Truck Driver’ contained under Part 4 of the Agreement.

[3] The Employer’s Statutory Declaration declares that the Manufacturing and Associated Industries and Occupations Award 2010 is the relevant Modern Award for the purposes of the BOOT in respect of the Yard Hand classification, while the Miscellaneous Award 2010 is the relevant Modern Award in respect of the Truck Driver classification. The Building and Construction General On-Site Award 2010 is the relevant Modern Award for all other classifications contained in the Agreement.

[4] The Applicant responded on 13 October 2017 stating that to the extent that another Modern Award was to be relied upon in relation to the Yard Hand and Truck Driver classifications, then the Storage Services and Wholesale Award 2010 was more appropriate than the Building and Construction General On-Site Award 2010 on the basis of the nature of the work performed by these classifications and the location of where the work is performed.

[5] On the information before me, I agree that the Storage Services and Wholesale Award 2010 is the relevant Modern Award for the purposes of the BOOT in respect to the Yard Hand and Truck Driver classifications.

[6] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement contains a flexibility provision which incorporates the model flexibility term prescribed by the Act as a term of the Agreement.

[8] As noted, pursuant to s.190(3), I have accepted undertakings from Caledonia Scaffolding Services Pty Ltd T/A Caledonia Scaffolding Services. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 November 2017. The nominal expiry date of the Agreement is 21 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Caledonia Scaffolding Services Pty Ltd, trading as Caledonia Scaffolding Services, applied for approval of the Caledonia Scaffolding Services Pty Ltd Enterprise Agreement 2017. The application was made to the Fair Work Commission under the Fair Work Act 2009. The dispute arose from negotiations between Caledonia Scaffolding and the union representing its employees, which led to the creation of the enterprise agreement. The application was opposed by the union, which argued that certain provisions of the agreement did not meet the requirements of the Act.

The Fair Work Commission was required to determine whether the agreement contained all the prescribed terms under the Fair Work Act 2009, and whether it met the "better off overall test". The commission also had to consider whether the agreement had been made in good faith and whether it contained appropriate dispute resolution procedures. The union argued that the agreement did not meet the better off overall test, and that it contained unfair provisions that would disadvantage employees.

The Fair Work Commission found that the agreement did contain all the prescribed terms, and that it met the better off overall test. The commission also found that the agreement had been made in good faith and contained appropriate dispute resolution procedures. The union's arguments were rejected, and the application for approval of the enterprise agreement was successful. The commission approved the agreement, which will now be binding on Caledonia Scaffolding and its employees.

The final orders of the Fair Work Commission were that the Caledonia Scaffolding Services Pty Ltd Enterprise Agreement 2017 be approved as a registered agreement under the Fair Work Act 2009. The agreement will now be binding on all employees of Caledonia Scaffolding, and will regulate their terms and conditions of employment. The union's opposition to the application was dismissed, and the agreement will come into effect on the date of the commission's decision.

Caledonia Scaffolding Services Pty Ltd T/A Caledonia Scaffolding Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established