DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4421)

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

Building, metal and civil construction industries
COMMISSIONER ROE	SYDNEY, 15 JULY 2016

Application for approval of the Scaff-Co 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 Scaff-Co 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 15 July 2016 and, in accordance with s.54, will operate from 22 July 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Scaff-Co Pty Ltd, sought approval for the Scaff-Co Pty Ltd and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018 from the Fair Work Commission. The respondent, CFMEU, opposed the approval on several grounds, including concerns about the process by which the agreement was reached. The matter was heard in the Fair Work Commission, the industrial relations tribunal with jurisdiction over such matters.

The primary legal issue before the Commission was whether the agreement had been made in accordance with the requirements of the Fair Work Act 2009. Specifically, the respondent argued that the agreement had not been genuinely negotiated and that the process by which it was reached was flawed. The Commission had to determine whether the agreement met the statutory criteria for genuine negotiation, including whether it was made without coercion or pressure from either party.

The Fair Work Commission found that the agreement had been genuinely negotiated and approved it. The Commission rejected the respondent's arguments that the process was flawed, finding that the evidence demonstrated that the agreement was the product of good faith negotiations. The Commission was satisfied that the parties had engaged in meaningful discussions and that the agreement reflected a fair and reasonable compromise between the parties' interests. The Commission also found that the agreement met all the statutory requirements for approval.

The Commission approved the Scaff-Co Pty Ltd and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018, rejecting the respondent's objections. The agreement was approved as meeting the requirements of the Fair Work Act 2009 and came into effect on the date of the Commission's decision.

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