Construction, Forestry, Maritime, Mining and Energy Union v McNab Constructions Pty Ltd

The Construction, Forestry, Maritime, Mining and Energy Union appealed against a decision made by the Fair Work Commission, specifically Deputy President Lake, who had ruled on the 25th of June, 2020, in a matter concerning an enterprise agreement. The agreement in question was between McNab Constructions Pty Ltd and the union, and the court was tasked with determining whether the agreement met the criteria outlined in the relevant legislation. The union argued that the Deputy President had erred in his conclusion that the agreement satisfied the Better Off Overall Test (BOOT), and whether there was sufficient evidence that the employer had complied with section 180(5) of the Fair Work Act.

The legal issues before the court were whether the Deputy President had correctly interpreted and applied the law in concluding that the enterprise agreement passed the BOOT and whether there was enough evidence to satisfy the court that the employer had complied with section 180(5) of the Fair Work Act. The union contended that the Deputy President had misapplied the law in reaching his conclusion regarding the BOOT and that there was insufficient evidence to show compliance with section 180(5).

The court found that the Deputy President had indeed erred in his interpretation of the law in concluding that the enterprise agreement passed the BOOT. The court was not satisfied with the evidence presented to demonstrate that the employer had complied with section 180(5). The court found that the Deputy President's decision was flawed, and therefore the permission to appeal was granted. The appeal was upheld, and the decision to approve the agreement was quashed. The court remitted the application to approve the agreement back to the Deputy President for reconsideration in light of the court's findings.