Construction, Forestry, Mining and Energy Union Summary

[2018] FWCA 168

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/6663)

Erect Safe Scaffolding (NSW) Pty Limited / CFMEU Greenfield Agreement 2017-2018

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 9 JANUARY 2018

Application for approval of the Erect Safe Scaffolding (NSW) Pty Limited / CFMEU Greenfield Agreement 2017-2018.

An application has been made for approval of a greenfields agreement known as the Erect Safe Scaffolding (NSW) Pty Limited / CFMEU Greenfield Agreement 2017-2018 (Agreement). The application was made by Construction, Forestry, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Mining and Energy Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Mining and Energy Union and that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 January 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission involved an application for the approval of an enterprise agreement between Erect Safe Scaffolding (NSW) Pty Limited and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred on the terms of the proposed agreement, which sought to regulate the employment conditions within the scaffolding industry in New South Wales. The Full Bench of the Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues before the Full Bench were whether the proposed agreement complied with the provisions of the Fair Work Act, specifically whether it adhered to the "better off overall test" and whether it included all mandated terms and conditions as per the Act. Additionally, the court had to consider if the agreement was made in good faith and whether it was free from any prohibited content. The primary concern was whether the agreement provided employees with a fair and just set of conditions that improved their overall conditions of employment.

The Full Bench found that the proposed agreement did meet the statutory requirements for approval. The agreement was deemed to be made in good faith and contained all the mandated terms and conditions as required by the Fair Work Act. The court was satisfied that the agreement provided employees with better overall conditions of employment, thereby passing the "better off overall test". Furthermore, the agreement did not include any prohibited content, and all relevant stakeholders had been appropriately consulted during the negotiation process. As a result, the Full Bench approved the Erect Safe Scaffolding (NSW) Pty Limited / CFMEU Greenfield Agreement 2017-2018.

In approving the agreement, the Full Bench issued orders confirming the agreement's validity and mandating its enforcement as a binding enterprise agreement between the parties. The agreement was to take effect from the date of the decision and remain in force until the earlier of its expiration or termination in accordance with the provisions of the Fair Work Act. The court's decision provided clarity and certainty for both employers and employees within the scaffolding industry in New South Wales, ensuring that the agreement would operate as a fair and just set of employment conditions.

Construction, Forestry, 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