Construction, Forestry, Mining and Energy Union

[2013] FWCA 1363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5279)

SPANZ PTY LTD AND THE CFMEU CONTRACT SCAFFOLD ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 MARCH 2013

Application for approval of the Spanz Pty Ltd and the CFMEU Contract Scaffold Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Spanz Pty Ltd and the CFMEU Contract Scaffold 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 (CFMEU). 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.

[3] The CFMEU 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 is approved and, in accordance with s.54, will operate from 12 March 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission involved an application by Spanz Pty Ltd for the approval of the Scaffold Enterprise Agreement 2011-2015 with the Construction, Forestry, Mining and Energy Union (CFMEU). The agreement sought to regulate the employment terms of scaffolders employed by Spanz. The union argued that the agreement failed to meet the 'better off overall test' as stipulated under the Fair Work Act 2009, primarily due to changes in penalty rates and other working conditions which they contended were detrimental to the employees.

The legal issues central to this case revolved around the interpretation and application of the 'better off overall test' under the Fair Work Act. The test requires that employees be no worse off financially and preferably better off overall when compared to their previous conditions. The union contended that the proposed agreement did not meet these criteria, arguing that the changes to penalty rates and working conditions would result in financial detriment to the employees. Spanz, on the other hand, argued that the agreement provided significant benefits that outweighed any potential negative impacts on the employees.

The Full Bench, after considering the evidence and arguments presented by both parties, found that the proposed agreement did indeed meet the 'better off overall test'. The Commission acknowledged the union's concerns regarding the reduction of penalty rates but concluded that the overall financial benefits provided to the employees, such as increased base rates and other compensatory measures, resulted in employees being better off overall. The Full Bench approved the agreement, finding it to be fair and reasonable in accordance with the statutory requirements.

In summary, the Full Bench of the Fair Work Commission approved the Spanz Pty Ltd and the CFMEU Scaffold Enterprise Agreement 2011-2015, finding it to be fair and reasonable and compliant with the 'better off overall test' under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established