DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/4796)

ALLIED SCAFFOLDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CONTRACT SCAFFOLD ENTERPRISE AGREEMENT 2019-2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 DECEMBER 2019

Application for approval of the ALLIED SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2019-2020.

[1] An application has been made for approval of an enterprise agreement known as the ALLIED SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2019-2020 (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] I note that employees were provided with the voting information and a copy of the Agreement on the 28 November 2019, and the vote was conducted 7 days later on the 5 December 2019, rather than 7 clear days as prescribed by the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.”

[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 27 December 2019. The nominal expiry date of the Agreement is 31 January 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union, applied to the Fair Work Commission for approval of the Allied Scaffolding Pty Ltd and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2019-2020. The respondent, Allied Scaffolding Pty Ltd, opposed the application on the basis that the agreement did not meet the requirements of the Fair Work Act 2009. The dispute was heard in the Fair Work Commission, the primary industrial relations tribunal in Australia.

The central legal issue before the Commission was whether the agreement complied with the statutory requirements of the Fair Work Act. Specifically, the Commission had to determine if the agreement met the criteria for a "modern award" under section 173 of the Act, which includes the requirements for good faith bargaining and the provision of a safety net for employees. The Commission also had to consider whether the agreement provided for appropriate mechanisms for the resolution of disputes and the protection of employees' rights.

The Fair Work Commission found that the agreement met the statutory requirements of the Fair Work Act. The Commission concluded that the agreement was the product of good faith bargaining between the parties and provided for a safety net for employees that was no less favourable than the relevant modern award. The Commission also found that the agreement provided for appropriate mechanisms for the resolution of disputes and the protection of employees' rights. The application for approval was therefore approved.

The Fair Work Commission approved the Allied Scaffolding Pty Ltd and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2019-2020. The Commission's decision provides guidance on the requirements for an enterprise agreement under the Fair Work Act and the role of the Commission in approving such agreements.

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