DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5250)

SCAFF-CO PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 2 JUNE 2021

Application for approval of the SCAFF-CO 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 SCAFF-CO 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 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 9 June 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to the Fair Work Commission for approval of a new enterprise agreement between SCAFF-CO PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The application was made under the Fair Work Act 2009, which provides a streamlined process for approving agreements that meet certain criteria. The dispute centred on whether the proposed agreement complied with the requirements of the Act and whether it was in the best interests of the employees covered by the agreement.

The legal issues before the court included whether the agreement had been made free of coercion, whether it contained all the mandatory terms required by the Act, and whether it met the "better off overall test" (BOOT). The court also needed to determine whether the agreement provided for proper dispute resolution mechanisms and whether the process followed in making the agreement was fair and appropriate. The CFMEU argued that the agreement was fair and represented the best interests of the employees, while SCAFF-CO PTY LTD contended that certain provisions were unreasonable and not in line with industry standards.

The Fair Work Commission found that the agreement met all the statutory requirements and was in the best interests of the employees. The court noted that the agreement contained all the mandatory terms and that the process followed in making the agreement was appropriate and free from coercion. The Commission also found that the agreement provided for adequate dispute resolution mechanisms and that it was better off overall for the employees. The court was satisfied that the agreement provided for reasonable terms and conditions of employment and that it was fair and appropriate in all the circumstances.

The Fair Work Commission approved the proposed agreement, subject to certain minor modifications to address technical issues. The final orders of the court included the approval of the agreement with the specified modifications, and the agreement is now in effect for the period 2020-2023. The decision provides guidance for employers and unions on the requirements for approving enterprise agreements under the Fair Work Act.

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