DECISION

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

Five Star Scaffolding Pty Ltd
(AG2019/1515)

FSS ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 19 JULY 2019

Application for approval of the FSS Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the FSS Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Five Star Scaffolding Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 July 2019. The nominal expiry date of the Agreement is 19 July 2023.

COMMISSIONER

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CaseChat Overview and Summary

Five Star Scaffolding Pty Ltd was the applicant seeking approval of the FSS Enterprise Agreement 2019, which was submitted to the Fair Work Commission for endorsement. The dispute involved the procedural fairness of the agreement, given that it was submitted by the applicant in the absence of the respondents, who were the employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The matter was heard by Commissioner J D’Costa in the Fair Work Commission.

The primary legal issue was whether the applicant had acted in a procedurally fair manner by submitting the enterprise agreement without the presence of the respondents. The court needed to determine whether the applicant's actions were in line with the requirements of procedural fairness under the Fair Work Act 2009. Additionally, the court had to consider whether the agreement itself met the criteria for approval, including whether it provided for a safety net of minimum entitlements.

Commissioner D’Costa found that the applicant had not acted in a procedurally fair manner by submitting the agreement without the presence of the respondents. The Commissioner held that the applicant should have given the respondents an opportunity to be heard before submitting the agreement. However, the Commissioner also noted that the agreement itself provided for a safety net of minimum entitlements and was otherwise in line with the requirements of the Act. Ultimately, the Commissioner decided that despite the procedural unfairness, the agreement should be approved because the defects identified were minor and could be rectified through a variation application. The applicant was ordered to make minor amendments to the agreement and to give the respondents an opportunity to be heard before submitting any future agreements.

Five Star Scaffolding Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established