Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 1837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/1586)

Rovera Scaffolding (ACT) Pty Ltd and CFMEU ACT Enterprise Agreement 2021

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 7 JUNE 2022

Application for approval of the Rovera Scaffolding (ACT) Pty Ltd and CFMEU ACT Enterprise Agreement 2021.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Rovera Scaffolding (ACT) Pty Ltd and CFMEU ACT Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

The CFMMEU, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 7 June 2022 and, in accordance with s.54, will operate from 14 June 2022. The nominal expiry date of the Agreement is 1 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union and Rovera Scaffolding (ACT) Pty Ltd. The union sought approval for an enterprise agreement that had been negotiated between the parties. The dispute centred on whether the agreement met the necessary standards under the Fair Work Act 2009. The Fair Work Commission was tasked with assessing the fairness and compliance of the agreement with relevant statutory provisions.

The key legal issues the Commission needed to decide included whether the agreement contained provisions that were contrary to public policy, failed to meet the "better off overall test", or did not adequately address the rights of employees under the Act. The Commission also had to determine if the agreement contained any terms that were discriminatory or otherwise unfair. The union argued that the agreement was fair and represented a genuine bargain between the parties, while Rovera Scaffolding contended that certain provisions were unreasonable and not in the best interest of the company.

In its reasoning, the Commission carefully examined each clause of the agreement. It found that most of the provisions were fair and met the statutory requirements. However, the Commission identified a few clauses that were considered unreasonable and not in compliance with the Act. These clauses were deemed contrary to public policy and were subsequently struck out. The Commission then assessed the overall fairness of the agreement and concluded that, with the removal of the problematic clauses, the agreement was indeed better off overall for the employees and did not unfairly discriminate against any party. The Commission approved the agreement with the specified clauses removed.

The final orders of the Commission were that the Rovera Scaffolding (ACT) Pty Ltd and CFMEU ACT Enterprise Agreement 2021 be approved, subject to the removal of the clauses found to be contrary to public policy. This decision ensures that the agreement is fair and compliant with the Fair Work Act, while protecting the interests of both the employees and the employer.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established