Construction, Forestry, Maritime, Mining and Energy Union

[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

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.

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application for the approval of a collective agreement between Safe and Sound Scaffolding Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (WA Branch). The dispute centred on the terms of the proposed agreement which aimed to regulate employment conditions within the scaffolding industry in Western Australia. The Federal Circuit and Family Court of Australia was tasked with reviewing the agreement to ensure it complied with relevant industrial relations legislation.

The court was required to determine whether the collective agreement met the necessary legal standards under the Fair Work Act 2009. Specifically, the court needed to assess whether the agreement was made in good faith, whether it was free from any improper conduct, and whether it contained any terms that were contrary to public policy or not genuinely related to employment. The court also had to consider if the agreement would result in unfair treatment of employees or if it unfairly disadvantaged any party.

In reaching its decision, the court examined the contents of the collective agreement and the processes by which it was negotiated. The court noted that the agreement had been developed through a process of genuine and meaningful bargaining between the parties. The terms were found to be reasonable and in line with industry standards. The court was satisfied that no improper conduct had occurred during the negotiation process, and that the agreement did not contain any terms that were contrary to public policy or unrelated to employment. The court concluded that the agreement was made in good faith and would not result in unfair treatment of employees or any party.

The court approved the Safe and Sound Scaffolding Pty Ltd and CFMEU (WA) Collective Agreement 2023-2027, noting that it met all the legal requirements under the Fair Work Act 2009. The court's approval was based on the thorough review of the agreement and the processes involved in its creation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established