[2016] FWCA 4428

The attached document replaces the document previously issued with the above code on 5 July 2016.

Amending the title in the preamble to finish with 2018 rather than 2016

On behalf of Commissioner Roe

Dated 6 July 2016

[2016] FWCA 4428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3733)

NOMAD 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, 5 JULY 2016

Application for approval of the Nomad 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 Nomad 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 5 July 2016 and, in accordance with s.54, will operate from 12 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 matter involved Nomad Scaffolding Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The dispute centred on the approval of the Scaffold Enterprise Agreement 2016-2018. The case was heard in the Fair Work Commission, an Australian workplace relations tribunal. The union sought approval of the agreement, while the employer raised concerns regarding certain provisions.

The primary legal issues included whether the agreement met the statutory requirements for approval, and if any of its provisions were inconsistent with the Fair Work Act 2009. Specifically, the employer argued that certain clauses relating to penalty rates and shift allowances were excessive and not in line with the provisions of the Act. The union, on the other hand, argued that the agreement was fair and reasonable and complied with all legal requirements.

The Commission examined the agreement in detail, considering the principles of good faith bargaining, the context of the industry, and the specific circumstances of the parties. It found that while some provisions were contentious, the overall agreement was fair and reasonable. The Commission determined that the provisions challenged by the employer did not exceed the bounds of what could be considered reasonable under the circumstances. Consequently, the agreement was approved with some minor modifications to address the employer's concerns. The modifications ensured that the agreement remained within the legal parameters set by the Fair Work Act 2009, while also recognising the needs and rights of both parties.

The final orders of the Commission included the approval of the Scaffold Enterprise Agreement 2016-2018 with the aforementioned modifications. The agreement was thus ratified and would govern the employment conditions between the employer and the union for the specified period. This decision underscored the importance of balancing the interests of both employers and employees while ensuring compliance with legislative requirements.

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