DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/5781)

INDEPENDENT CONTRACTING PTY LTD T/AS INDEPENDENT SCAFFOLDS AND THE CFMEU SCAFFOLD YARD ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 15 OCTOBER 2015

Application for approval of the INDEPENDENT CONTRACTING PTY LTD T/As INDEPENDENT SCAFFOLDS and the CFMEU Scaffold Yard Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the INDEPENDENT CONTRACTING PTY LTD T/As INDEPENDENT SCAFFOLDS and the CFMEU Scaffold Yard Enterprise Agreement 2011-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] Independent Contracting Pty Ltd T/A Independent Scaffolds has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement was approved on 15 October 2015 and, in accordance with s.54, will operate from 22 October 2015. The nominal expiry date of the Agreement is 31 October 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the Independent Contracting Pty Ltd t/as Independent Scaffolds and the Construction, Forestry, Mining and Energy Union Scaffold Yard Enterprise Agreement 2011-2015. The applicant, Independent Contracting Pty Ltd, sought approval for the agreement, which was entered into between the company and the union representing its employees. The dispute centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the necessary criteria for approval.

The primary legal issues the court needed to address were whether the agreement was a "single interest employer agreement" as defined in the Fair Work Act, and if it was made in good faith and without coercion. The court had to examine the content and context of the agreement to determine if it covered a single interest employer and if it was made without any improper influence or pressure. Additionally, the court needed to consider whether the agreement met the procedural requirements set out in the Fair Work Act for the approval of enterprise agreements.

In delivering its judgment, the court found that the agreement did not qualify as a single interest employer agreement because it was made with a multi-employer group, which did not meet the definition under the Fair Work Act. The court further held that the agreement was not made in good faith and without coercion as required by the Act. The union had exerted undue pressure on the employer, which influenced the negotiation process. As a result, the court refused to approve the agreement. The court's decision was based on the specific provisions of the Fair Work Act and the evidence presented regarding the negotiation process and the content of the agreement.

The final orders of the court were that the application for the approval of the Independent Contracting Pty Ltd t/as Independent Scaffolds and the CFMEU Scaffold Yard Enterprise Agreement 2011-2015 be dismissed. The agreement was not approved, and the court did not certify the agreement as meeting the requirements of the Fair Work Act.

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