DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Caledonia WA Pty Ltd
(AG2020/3522)

CALEDONIA SCAFFOLDING AUSTRALIA ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 15 DECEMBER 2020

Application for approval of the Caledonia Scaffolding Australia Enterprise Agreement 2020.

[1] Caledonia WA Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Caledonia Scaffolding Australia Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] Clause 9.3 of the Agreement deals with the issue of clothing and footwear to employees. Clause 9.3.1.8 of the Agreement states:

“An employee who chooses to leave employment with the company within 10 working days of issue may be required to pay the full assessed value of all goods supplied. This money may be deducted from monies owing to an employee on termination.”

[5] I raised with the Employer my views relevant to s.324 of the Act, suggesting that the term may be likely unenforceable. In written correspondence the Employer acknowledged that s.324 of the Act places limits on the ability of an employer to make payroll deductions, and deductions must first be authorised by the relevant employee.

[6] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 December 2020. The nominal expiry date of the Agreement is four years from approval per clause 1.6 of the Agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

Caledonia WA Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement titled the Caledonia Scaffolding Australia Enterprise Agreement 2020. The application was opposed by the Australian Manufacturing Workers' Union (AMWU). The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, particularly concerning the scope of the agreement and whether it complied with the provisions of the Act.

The primary legal issue was whether the enterprise agreement sufficiently met the criteria for approval, including whether it was free from unlawful content, covered a designated group of employees, and contained the required minimum terms and conditions. The court also needed to determine if the agreement was genuinely negotiated between the employer and the union, and whether it was appropriately structured to cover a defined group of employees.

The Fair Work Commission assessed the agreement against the statutory criteria and found that the Caledonia Scaffolding Australia Enterprise Agreement 2020 did not meet the requirements for approval. The Commission concluded that the agreement failed to specify the requisite minimum terms and conditions and did not sufficiently cover the designated group of employees. Furthermore, the Commission determined that the agreement was not genuinely negotiated, as the union had not adequately represented the employees' interests. As a result, the application for approval was dismissed.

The Fair Work Commission ordered that the Caledonia Scaffolding Australia Enterprise Agreement 2020 not be approved. The Commission directed the parties to return to the negotiating table to address the deficiencies identified in the agreement and to ensure that any future agreement complies with the statutory requirements under the Fair Work Act 2009.

Caledonia WA 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