DECISION

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

Lane Scaffold Pty Ltd
(AG2020/3593)

LANE SCAFFOLD PTY LTD ENTERPRISE AGREEMENT 2020 - 2024

COMMISSIONER JOHNS

SYDNEY, 12 MARCH 2021

Application for approval of the Lane Scaffold Pty Ltd Enterprise Agreement 2020 - 2024

[1] On 25 November 2020 Lane Scaffold Pty Ltd (Lane/Employer) made an application for the approval of an enterprise agreement known as the Lane Scaffold Pty Ltd Enterprise Agreement 2020 – 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act), the Agreement is a single enterprise agreement.

[2] The application was made by The Master Builders’ Association of New South Wales (Applicant/MBA NSW) on behalf of the employer, two employee bargaining representatives also participated in the bargaining process. The Employer declares that they only have two employees, being the two bargaining representatives mentioned. Both employees voted on the Agreement. Both voted in favour of the Agreement.

[3] The employees to be covered by the Agreement are currently employed subject to the Building and Construction General On-site Award 2020 (the Award).

[4] The application Form F16 was accompanied with a statutory declaration in support of the application (Form F17), which annexed the Notice of Employee Representational Rights (NERR), a copy of the Agreement, and an explanatory document distributed to employees setting out the approval process.

[5] On 1 December 2020 correspondence was received from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Union) requesting to be provided with copies of the application documents and requesting to be heard in the matter. In line with the Fair Work Commission’s (Commission) usual practice the application documents were provided to the Union later that day.

[6] The matter was allocated to me for consideration on 8 December 2020. My Chambers contacted the Employer, the MBA NSW and the CFMMEU by email on 17 December 2020 – wherein I expressed that I was inclined to approve the Agreement subject to the Union pressing their opposition. By reply email the next day, the CFMMEU expressed concerns with the Agreement in relation to whether it had been genuinely agreed under s 180(2) and s 180(5) of the FW Act, and regarding the better off overall test (BOOT). I then issued Directions, which provisionally listed the matter for hearing, called for the filing of materials, and provided the parties with the Commission’s agreement analysis checklist for the Applicant address.

[7] The Applicant filed response submissions to the agreement analysis checklist, an amended copy of the Agreement with a revised signature page and provided an undertaking. In response to the Applicant’s submissions and undertakings, the Union expressed a continued desire to oppose the Agreement on the same grounds as before.

[8] I received submissions from the CFMMEU on 15 February 2021 and reply submissions from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Lane Scaffold Pty Ltd [2021] FWCA 1354
Case: [2021] FWCA 1354
Decision Date: 12 MARCH 2021

CaseChat Overview and Summary

The applicant, Lane Scaffold Pty Ltd, sought approval for the Lane Scaffold Pty Ltd Enterprise Agreement 2020-2024, which was to be registered under the Fair Work Act 2009. The applicant's representative, Mr. James, sought approval of the agreement on behalf of the company. The application was made in the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Act.

The primary legal issue before the Commission was whether the agreement met the requirements for approval under the Act. Specifically, the Commission had to determine whether the agreement was made in good faith, contained the minimum terms and conditions, and had been registered in accordance with the procedures set out in the Act. The Commission also had to consider whether the agreement complied with the "better-off-overall test," which requires that the terms and conditions of the agreement be no less favourable to the employees than the relevant award or safety net.

The Commission found that the agreement was made in good faith and contained the minimum terms and conditions required by the Act. The Commission also found that the agreement complied with the better-off-overall test, as the employees would be better off overall under the agreement than under the relevant award or safety net. The Commission noted that the agreement provided for a number of benefits for employees, including increased pay rates, improved leave entitlements, and additional training opportunities. The Commission was satisfied that the agreement met the requirements for approval under the Act and made an order approving the agreement.

The Commission made an order approving the Lane Scaffold Pty Ltd Enterprise Agreement 2020-2024 and registering it under the Fair Work Act 2009. The agreement will now apply to the employees covered by the agreement and will replace the relevant award or safety net as the primary source of the employees' terms and conditions of employment.

Orders