Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 5670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7279)

SCAFFOLDS ARE US PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 SEPTEMBER 2021

Application for approval of the SCAFFOLDS ARE US PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the SCAFFOLDS ARE US PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[5] The Construction, Forestry, Maritime, 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The case involved an application for approval of a proposed enterprise agreement between Scaffolds Are Us Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The matter was heard by the Fair Work Commission, a specialised body with jurisdiction to approve, reject or refer back for further consideration, enterprise agreements under the Fair Work Act 2009. The dispute centred on whether the proposed agreement met the legal requirements and provided for a fair and reasonable outcome for the parties involved.

The central legal issues before the Commission were whether the proposed agreement complied with the legislative criteria for approval, including provisions related to minimum wages and conditions, the protection of employees' rights, and the proper negotiation process. The Commission had to ensure that the agreement did not undermine the existing industrial framework, provided for a fair and reasonable outcome for all parties, and complied with the procedural requirements of the Fair Work Act.

In considering the application, the Commission examined the proposed agreement in detail, taking into account the submissions and evidence provided by both parties. The Commission found that the agreement met the legal requirements for approval and provided for a fair and reasonable outcome for the parties involved. The agreement included provisions for minimum wages and conditions, the protection of employees' rights, and a proper negotiation process. The Commission also noted that the agreement would not undermine the existing industrial framework and would provide for an orderly transition to the new agreement.

The Fair Work Commission approved the proposed agreement, the Scaffolds Are Us Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023, subject to certain conditions. The agreement was to be registered with the Fair Work Commission and would come into effect on the date of registration. The Commission also made orders for the publication of the agreement and for the notification of affected employees.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established