Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 3169

[2023] FWCA 3169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/3322)

SAFE AND SOUND SCAFFOLDING PTY LTD AND CFMEU (WA) COLLECTIVE AGREEMENT 2023 - 2027

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 2 OCTOBER 2023

Application for approval of the Safe and Sound Scaffolding Pty Ltd and CFMEU (WA) Collective Agreement 2023- 2027

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) has made an application for the approval of an enterprise agreement known as the Safe and Sound Scaffolding Pty Ltd and CFMEU (WA) Collective Agreement 2023- 2027 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s 173(2) was 30 June 2023 and the Agreement was made on 7 September 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. I note that clause 40.5 of the Agreement provides for compassionate leave when a member of the employee’s immediate family or a member of the employee’s household develops a personal illness or serious threat to life, sustains a serious injury or dies. This clause is silent on the entitlement when there is a miscarriage or stillborn child as per section 104(b) of the Act. However, noting clause 5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 2 October 2023 and, in accordance with s 54, will operate from 9 October 2023.  The nominal expiry date of the Agreement is 2 July 2027.

COMMISSIONER

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