DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6180)

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

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 23 JULY 2021

Application for approval of the SMARTSCAFF 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 SMARTSCAFF 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 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.

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

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by SMARTSCAFF PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division) for the approval of the Subcontractors Scaffold Yard Enterprise Agreement 2020-2023. The application was heard by Commissioner J.C. Lee, who was required to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue before the court was whether the agreement provided for the proper operation of the enterprise, taking into account the nature and requirements of the scaffolding industry. Additionally, the court had to consider whether the agreement complied with the relevant provisions of the Fair Work Act and the Fair Work Regulations 2009, specifically in relation to the terms and conditions of employment, minimum wages, and the requirements for good faith bargaining.

In delivering the decision, Commissioner Lee examined the provisions of the agreement and found that it adequately addressed the needs of both parties and provided for the efficient operation of the scaffolding enterprise. The court held that the agreement met the statutory requirements for approval, as it contained provisions for minimum wages and conditions of employment that were no less favourable than the applicable awards and registered agreements. The commissioner also found that the agreement demonstrated evidence of good faith bargaining between the parties, as it provided for mechanisms to resolve disputes and address issues as they arose. Consequently, the court approved the agreement, finding it to be in accordance with the relevant provisions of the Fair Work Act and the Fair Work Regulations.

The final order of the court was the approval of the Subcontractors Scaffold Yard Enterprise Agreement 2020-2023 between SMARTSCAFF PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The agreement was deemed to be in compliance with the Fair Work Act and the Fair Work Regulations, and it was approved for operation within the scaffolding industry.

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