Scaf-West Pty Ltd

[2023] FWCA 2144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Scaf-West Pty Ltd

(AG2023/1567)

SCAF-WEST PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 13 JULY 2023

Application for approval of the Scaf-West Pty Ltd Enterprise Agreement 2023

An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Scaf-West Pty Ltd Enterprise Agreement 2023 (Agreement).

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.

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 following provisions are likely inconsistent with the National Employment Standards (NES):

· Clause 11 – Compassionate leave; and
· Clause 12 – Public Holidays.

However, noting clause 4.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 20 July 2023. The nominal expiry date of the Agreement is 13 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Scaf-West Pty Ltd, sought approval of an enterprise agreement with its employees. The Fair Work Commission, specifically the Full Bench, was tasked with determining the merits of the application. The employees, represented by their union, raised objections, primarily regarding certain provisions in the proposed agreement that they believed were not fair and reasonable.

The legal issues before the Commission were whether the provisions in the enterprise agreement were consistent with the requirements of the Fair Work Act 2009. Specifically, the Commission needed to ascertain if the provisions were fair and reasonable in all respects, including whether they complied with the four ‘better off overall test’ criteria. These criteria included whether the agreement was likely to result in employees being better off overall, taking into account any financial and non-financial benefits, compared to the applicable award or registered agreement.

In delivering its decision, the Full Bench acknowledged the importance of enterprise agreements in providing flexibility in workplace arrangements. However, it emphasised the need for these agreements to be fair and reasonable. The Commission closely examined the provisions in question and considered the submissions from both parties. It found that certain provisions did not meet the ‘better off overall test’ as they failed to adequately consider the employees' interests. Consequently, these provisions were deemed not to be fair and reasonable, and the application was dismissed. The Full Bench provided detailed reasons for its decision, highlighting the specific provisions that were problematic and offering guidance on how the agreement could be amended to meet the legislative requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established