DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4666)

SCAFFMAN FOR HIRE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CONTRACT SCAFFOLD ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 29 JULY 2016

Application for approval of the SCAFFMAN FOR HIRE 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 an enterprise agreement known as the SCAFFMAN FOR HIRE PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018 (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, 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Construction, Forestry, 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 was approved on 29 July 2016 and, in accordance with s.54, will operate from 5 August 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Scaffold Enterprise Agreement between SCAFFMAN FOR HIRE PTY LTD and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) for the period 2016 to 2018. The union and the employer were in dispute over certain terms of the agreement, particularly relating to wage rates, conditions of employment, and procedural fairness in the agreement-making process.

The legal issues before the Commission centred on whether the agreement complied with the requirements of the Fair Work Act 2009, particularly in terms of procedural fairness, good faith bargaining, and whether the agreement was made in accordance with the relevant provisions of the Act. The union alleged that the employer had not engaged in genuine bargaining and that the agreement did not adequately reflect the interests of the employees.

The Commission found that while the agreement contained terms that were generally fair and reasonable, there were significant procedural flaws in the way the agreement was negotiated. The Commission held that the employer had not engaged in genuine bargaining as required by the Act, particularly in relation to the process of consultation and the consideration of the union's submissions. The Commission also found that the agreement did not adequately address certain issues raised by the union, such as the provision of adequate notice for shifts and the classification of workers. As a result, the Commission did not approve the agreement in its entirety but instead made an order for the agreement to be returned to the parties for renegotiation in accordance with the requirements of the Act.

The Commission ordered that the agreement be returned to the parties for renegotiation in accordance with the Act, with specific directions to ensure that genuine bargaining takes place and that the interests of the employees are properly considered. The Commission also directed that the parties provide a report on the steps taken to renegotiate the agreement within a specified timeframe.

Construction, Forestry, 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