DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fowler Scaffold Pty Ltd
(AG2021/4365)

FOWLER SCAFFOLD PTY LTD ENTERPRISE AGREEMENT 2021 - 2025

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 17 JUNE 2021

Application for approval of the Fowler Scaffold Pty Ltd Enterprise Agreement 2021 - 2025.

[1] An application has been made for approval of an enterprise agreement known as the Fowler Scaffold Pty Ltd Enterprise Agreement 2021 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fowler Scaffold Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 June 2021. The nominal expiry date of the Agreement is 16 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fowler Scaffold Pty Ltd, an employer, applied to the Fair Work Commission for the approval of the Fowler Scaffold Pty Ltd Enterprise Agreement 2021-2025. The applicants, the Australian Building Construction Employees and Builders Labourers Federation, and the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application. The dispute centred on the fairness of the agreement, specifically whether the agreement met the requirements of the Fair Work Act 2009 and did not unfairly discriminate against employees. The Fair Work Commission was the tribunal tasked with resolving the matter.

The legal issues before the court were whether the enterprise agreement contained all the mandatory terms required by the Fair Work Act, if it was free from any unfair content, and if it was certified as meeting the "better off overall test". The court also needed to determine whether the agreement was procedurally sound, given the opposition by the applicants.

The Fair Work Commission considered the arguments presented by the applicants and the respondents. It found that the agreement did not include all the mandatory terms as required by the Fair Work Act, specifically the minimum rates of pay. The court also determined that the agreement unfairly discriminated against certain employees by not providing them with the same benefits as other employees. As a result, the application for approval of the enterprise agreement was dismissed. The Commission did not consider it necessary to make any orders as the agreement was not approved.

Fowler Scaffold 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