DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6231)

SCAFFOLD LOGISTICS COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS SCAFFOLD YARD ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 JULY 2021

Application for approval of the SCAFFOLD LOGISTICS COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Scaffold Yard Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the SCAFFOLD LOGISTICS COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Scaffold Yard 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 3 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of an enterprise agreement between Scaffold Logistics Commercial Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Scaffold Yard Enterprise Agreement 2020-2023. The dispute centred on whether the agreement met the legal criteria for approval under the Fair Work Act 2009. The Commission was tasked with determining if the agreement contained the necessary provisions and whether it was fairly and properly made.

The primary legal issues the Commission had to address included whether the agreement contained all the mandated terms and conditions as per the Fair Work Act, if the agreement was made without undue influence or coercion, and if the bargaining process was genuine. The Commission also needed to assess if the agreement provided for the protection of employees' rights and if it complied with the provisions for procedural fairness. Additionally, the Commission had to consider if the agreement contained provisions that were contrary to public policy or were otherwise unenforceable.

In delivering its decision, the Commission found that the agreement did indeed contain all the required terms and conditions as stipulated by the Fair Work Act. The bargaining process was deemed to have been genuine, with no evidence of undue influence or coercion. The agreement was also found to provide adequate protection for employees' rights and complied with the necessary procedural fairness requirements. Importantly, the Commission concluded that the agreement did not contain any provisions that were contrary to public policy or unenforceable. Therefore, the Commission approved the agreement, finding it to be a lawful and appropriate enterprise agreement.

The Fair Work Commission approved the Scaffold Logistics Commercial Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Scaffold Yard Enterprise Agreement 2020-2023, confirming its compliance with the Fair Work Act. The Commission's decision affirmed the agreement as a legitimate and effective means of regulating the employment terms and conditions between the parties involved.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established