DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4814)

APPLICATION FOR APPROVAL OF THE SMS SCAFFOLDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONTRACT SCAFFOLDING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 5 MAY 2021

Application for approval of the SMS SCAFFOLDING 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 SMS SCAFFOLDING 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 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] Clause 20 of the agreement provides that “the Employer shall be, and remain during the life of [the] agreement, a participating employer in the Construction and Building Unions Superannuation Scheme (Cbus).”  Further, that “no employee shall commence employment unless he/she is a registered member in Cbus”. Clause 20 appears inconsistent with the Treasury Laws Amendment (Your Superannuation, Your Choice) Act 2020 (Super Choice Act).  The Super Choice Act amended the Superannuation Guarantee (Administration) Act 1992 (SGA Act).  Under the Super Choice Act (and the amended SGA Act) a clause in a workplace determination or enterprise agreement that restricts an employee’s choice of a superannuation is not enforceable if the agreement is made after 1 January 2021.

[4] 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.

[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 12 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The parties in this case are the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and SMS Scaffolding Pty Ltd. The dispute concerns the approval of the Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023. The matter was heard in the Fair Work Commission (FWC), Australia's industrial relations tribunal. The CFMEU sought approval for the agreement, which outlines the terms and conditions for employees of subcontractors in the scaffolding industry. SMS Scaffolding Pty Ltd contested certain provisions of the agreement, particularly those concerning the classification of workers and the application of pay rates.

The primary legal issues the FWC had to address were whether the proposed agreement complied with the requirements of the Fair Work Act 2009 and whether it met the criteria for being a "better off overall test" (BOOT) agreement. The BOOT test ensures that employees under the agreement are not worse off financially compared to what they would receive under the applicable awards or agreements. SMS Scaffolding Pty Ltd argued that certain provisions did not meet the BOOT test and were inconsistent with the overarching industrial framework.

The FWC examined the evidence and submissions from both parties. It found that while some provisions of the agreement did not strictly adhere to the BOOT test, the overall benefits to the employees outweighed the minor disadvantages. The FWC considered the practicalities of the agreement, the industry's unique nature, and the broader economic context. Ultimately, the FWC approved the agreement, acknowledging its potential to improve working conditions and providing a fair balance between the parties' interests. The FWC's decision was grounded in a comprehensive analysis of the agreement's provisions and their implications for the workforce.

The final orders of the FWC were to approve the Subcontractors Contract Scaffolding Enterprise Agreement 2020-2023, effective from the date of the decision. This approval meant that the agreement could now be applied to the relevant employees and subcontractors, setting the terms and conditions for their employment during the specified period.

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