DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/4100)

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

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 8 NOVEMBER 2019

Application for approval of the SMS 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 SMS 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 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] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 November 2019. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the SMS Scaffolding Pty Ltd and CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2019-2020. The dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The Commission was tasked with assessing if the agreement complied with the provisions that govern enterprise agreements in Australia, including provisions related to minimum entitlements, procedural fairness, and the agreement's coverage.

The legal issues before the Commission involved a detailed examination of the agreement's provisions to ensure they adhered to the statutory standards set out in the Fair Work Act. Specifically, the Commission needed to determine if the agreement provided for minimum entitlements that were not less favourable than those provided by the applicable awards or safety nets, and if the agreement had been negotiated in good faith. Additionally, the Commission considered whether the agreement's terms were clear, not misleading, and if the process followed for the agreement's negotiation was procedurally fair.

In delivering its decision, the Commission undertook a thorough analysis of the agreement's contents and the processes involved in its negotiation. The Commission found that the agreement did indeed meet the statutory requirements, as it provided for terms and conditions that were not less favourable than the relevant awards or safety nets and had been negotiated in good faith. Furthermore, the agreement was deemed to be clear and not misleading, and the negotiation process was found to be procedurally fair. As a result, the Commission approved the agreement, thereby resolving the dispute in favour of the applicant.

The Fair Work Commission approved the SMS Scaffolding Pty Ltd and CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2019-2020, effective from the date of the decision. The approval signified the agreement's compliance with the legal standards required for enterprise agreements under Australian labour law.

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