DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3759)

CITYLINE SCAFFOLDING 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, 7 JULY 2016

Application for approval of the CITYLINE 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 an enterprise agreement known as the CITYLINE SCAFFOLDING 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 7 July 2016 and, in accordance with s.54, will operate from 14 July 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the CITYLINE SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018. The Construction, Forestry, Mining and Energy Union sought to have the agreement approved, while Cityline Scaffolding Pty Ltd contested the application. The dispute centred on whether the agreement met the statutory requirements for enterprise agreements under the Fair Work Act 2009. The Commission was tasked with determining whether the agreement was in the best interests of the employees and whether it complied with the legislative framework.

The central legal issues before the Commission were whether the agreement satisfied the 'better off overall test' and the 'independent test', as prescribed by the Fair Work Act. The 'better off overall test' required the Commission to assess whether the agreement would provide employees with terms and conditions that are no worse than those provided under the relevant awards, and preferably better. The 'independent test' required the agreement to be independent of any party, free from any undue influence or coercion. Additionally, the Commission had to consider whether the agreement was made in good faith and whether it complied with the mandatory provisions of the Fair Work Act.

The Fair Work Commission found that the agreement did meet the 'better off overall test', as the employees would be provided with terms and conditions that were at least as good as, and in some cases better than, those under the relevant awards. The Commission also found that the agreement was independent, made in good faith, and free from any undue influence or coercion. The agreement complied with the mandatory provisions of the Fair Work Act, including provisions related to minimum wages, penalties rates, leave entitlements, and maximum weekly hours. Consequently, the Commission approved the CITYLINE SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018.

The final orders of the Commission were that the CITYLINE SCAFFOLDING PTY LTD and the CFMEU (Victorian Construction and General Division) Contract Scaffold Enterprise Agreement 2016-2018 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to commence on the first day of the fourth calendar month after the registration and would remain in effect until the first day of the fourth calendar month after the agreement's initial commencement date, unless terminated earlier in accordance with the agreement or the Fair Work Act. The approval of the agreement was seen as a positive outcome for the employees, providing them with improved terms and conditions of employment.

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