Topdeck Scaffolding Pty. Limited

[2024] FWCA 3318

[2024] FWCA 3318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Topdeck Scaffolding Pty. Limited

(AG2024/3211)

TOPDECK SCAFFOLDING PTY LTD ENTERPRISE AGREEMENT 2024 - 2028

Building, metal and civil construction industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 19 SEPTEMBER 2024

Application for approval of the Topdeck Scaffolding Pty Ltd Enterprise Agreement 2024 - 2028

Introduction

1. Topdeck Scaffolding Pty. Limited (the Employer) has made an application for approval of an enterprise agreement known as the Topdeck Scaffolding Pty Ltd Enterprise Agreement 2024 – 2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 14 June 2024 and the Agreement was made on 9 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

1. The NERR that was issued to employees read as follows:

TOPDECK SCAFFOLDING PTY. LIMITED gives notice that it is bargaining in relation to a single-enterprise agreement (Topdeck Scaffolding Pty Ltd Enterprise Agreement 2024 – 2028), which is proposed to cover employees that perform scaffolding work. [emphasis added]

1. The Agreement’s classifications at Appendix 1 indicate that employees who fall into the classifications at Level 1 and Level 2 perform labouring duties on site. These classifications do not include reference to the performance of scaffolding work. On 16 September 2024, the Employer provided submissions to the effect that the reference to employees that ‘perform scaffolding work’, was intended in the broader sense of work involving the erection and dismantling of scaffolding, as well as all other associated labouring activities, and was not intended to have the effect of excluding labourers. The Employer also submitted that its employees performing labouring work and who are classified at Levels 1 and 2 under the Agreement understood at all times that the Agreement under negotiation was to apply to them as well as those performing direct scaffolding work. On this basis, the Employer submitted that I disregard the reference to ‘perform scaffolding work’ in the NERR as a minor procedural or technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards (NES) Precedence Term

1. The Agreement contains a casual conversion clause which reflects the Act’s scheme prior to 26 August 2024. However, the casual conversion clause does not incorporate the changes available to casual employees employed after this date, and which take effect from February 2025 (which occurs during the Agreement’s nominal term). To the extent that this clause may be inconsistent with the NES, I note that in accordance with the NES precedence term in Clause 3.4.5 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 186, 187, and 188

1. 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 2024. The nominal expiry date of the Agreement is 19 September 2028.

Variation

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.
   

2. Relevantly, it was identified that clause 3.4.2. of the Agreement, which incorporates the Building and Construction General On-site Award 2020, provides as follows:

   The provisions of are expressly incorporated into the terms and conditions of this Agreement. [sic]

3. On 16 September 2024, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct the error as follows, with the correction in underlined text:

   The provisions of the Building and Construction General On-site Award 2020 are expressly incorporated into the terms and conditions of this Agreement.

4. Further, the Form F17B indicates that the Agreement will only operate in New South Wales. However, the Agreement is silent as to the states or territories in which it operates and does not indicate it will not operate outside of New South Wales. On 16 September 2024, the Employer provided submissions confirming that the Agreement is only intended to operate in New South Wales, and agreed to the Commission’s proposal to vary the Agreement at clause 3.3.1 pursuant to s.218A to correct the error as follows, with the correction in underlined text:

   This Agreement shall apply where the Company undertakes General building and construction work in New South Wales.

5. I am satisfied that the errors listed in [11] and [13] above are errors, defects or irregularities within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR779453]). The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 26 September 2024.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

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