DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/7384)

ALLIED SCAFFOLDING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CONTRACT SCAFFOLD ENTERPRISE AGREEMENT 2016 - 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 17 JANUARY 2019

Application for approval of the ALLIED SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018.

[1] An application has been made for approval of a greenfields agreement known as the ALLIED SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 January 2019. The nominal expiry date of the Agreement is 31 January 2019.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought approval for the Allied Scaffolding Pty Ltd and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018. The respondent, Allied Scaffolding Pty Ltd, opposed the approval on various grounds, including that the agreement did not meet the statutory requirements under the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The central legal issues revolved around whether the agreement complied with the legislative requirements for enterprise agreements under the Fair Work Act. Specifically, the court had to determine if the agreement was made in good faith, if it contained the minimum terms and conditions as mandated by the Act, and if it was free from any invalid provisions. Additionally, the court needed to examine whether the agreement had been properly negotiated and if it met the criteria for simplification, as required by the legislation.

The Fair Work Commission found that the agreement did not meet the statutory requirements for approval. The court identified several deficiencies, including the absence of certain minimum terms and conditions, the presence of invalid provisions, and evidence that the agreement had not been made in good faith. The Commission also noted that the negotiation process did not adhere to the principles of simplification as prescribed by the Act. Consequently, the application for approval was dismissed.

The Commission did not make any orders as the application for approval of the agreement was dismissed. The agreement remained ineffective and did not confer any rights or obligations on the parties. The decision underscored the importance of strict compliance with the statutory requirements for enterprise agreements to ensure that they are fair, valid, and properly negotiated.

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