Construction, Forestry and Maritime Employees Union

[2024] FWCA 3821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/3973)

SUNLINE SCAFFOLDING 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, 31 OCTOBER 2024

Application for approval of the SUNLINE SCAFFOLDING 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 SUNLINE SCAFFOLDING 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 25 September 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 application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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 31 October 2024 and, in accordance with s.54 of the Act, will operate from 7 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 Construction, Forestry and Maritime Employees Union (CFMEU) and Sunline Scaffolding Pty Ltd brought an application to the Fair Work Commission to approve a Subcontractors Contract Scaffolding Enterprise Agreement for the period 2024 to 2027. The agreement aimed to set out the terms and conditions of employment for workers employed by Sunline Scaffolding, who are subcontractors of the CFMEU. The primary dispute in this case centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009. Specifically, the CFMEU and Sunline Scaffolding needed to demonstrate that the agreement complied with the 'better off overall test', ensuring that no party was worse off financially, and that the agreement met the 'good faith' bargaining requirement.

The court was tasked with examining the proposed agreement to determine whether it provided a safety net of minimum wages and conditions, and whether it was the product of genuine, good-faith bargaining between the parties. The court also had to consider whether the agreement was consistent with the principles of the Fair Work Act and whether it was likely to promote harmonious, productive, and cooperative workplace relations. Additionally, the court needed to ensure that the agreement did not discriminate against any group of employees and that it complied with the National Employment Standards and the National Wage Case.

In its decision, the Fair Work Commission found that the Subcontractors Contract Scaffolding Enterprise Agreement 2024-2027 met all the necessary criteria for approval. The commission determined that the agreement provided a safety net of minimum wages and conditions, and that it was the product of genuine, good-faith bargaining. The agreement was found to be consistent with the principles of the Fair Work Act and was likely to promote harmonious, productive, and cooperative workplace relations. Furthermore, the commission confirmed that the agreement did not discriminate against any group of employees and complied with the National Employment Standards and the National Wage Case. Based on these findings, the commission approved the agreement, ensuring that it would be a lawful and enforceable contract for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established