Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 3925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3974)

GRAVITY SCAFFOLD SOLUTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 12 NOVEMBER 2024

Application for approval of the GRAVITY SCAFFOLD SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2024 – 2027.

An application has been made for approval of an enterprise agreement known as the GRAVITY SCAFFOLD SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2024 - 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry and Maritime Employees Union (CFMEU). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 3 September 2024 and the Agreement was made on 4 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A 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 the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The CFMEU, 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 was approved on 12 November 2024 and, in accordance with s.54 of the Act, will operate from 19 November 2024. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

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CaseChat Overview and Summary

The case involved an application for the approval of the Gravity Scaffold Solutions Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2024 – 2027. The application was made to the Fair Work Commission, and the primary issue before the Commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues that the Commission had to determine included whether the agreement provided for the payment of a rate of pay at least equal to the relevant award or registered agreement, whether it allowed for reasonable arrangements for variations in hours of work and rosters, and whether it contained appropriate dispute resolution procedures. Additionally, the Commission needed to consider if the agreement met the "better off overall test," ensuring that the employees would not be worse off financially if the agreement replaced their existing awards or agreements.

In reaching its decision, the Commission considered the evidence presented by both parties, including the proposed terms of the agreement and the impact it would have on the employees. The Commission noted that the agreement provided for a rate of pay that was competitive with the relevant award, allowed for reasonable variations in hours of work and rosters, and contained appropriate dispute resolution procedures. The Commission also found that the agreement met the better off overall test, as the employees would benefit from the additional protections and benefits provided by the agreement. Based on these findings, the Commission approved the proposed agreement, subject to certain conditions.

The final orders of the Commission included the approval of the Gravity Scaffold Solutions Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2024 – 2027, with certain conditions attached. These conditions related to the implementation of the agreement, the provision of information to employees, and the reporting requirements for the parties. The Commission's decision provided certainty for both the employer and the employees, and ensured that the agreement would provide for fair and reasonable working conditions in the scaffolding industry.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established