E.B. Mawson & Sons Pty Ltd T/A Mawsons Summary

[2024] FWCA 4277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

E.B. Mawson & Sons Pty Ltd T/A Mawsons

(AG2024/3581)

E.B MAWSON AND SONS QUARRY & CONCRETE ENTERPRISE AGREEMENT 2024

Quarrying industry
COMMISSIONER FOX	MELBOURNE, 3 DECEMBER 2024

Application for approval of the E.B Mawson and Sons Quarry & Concrete Enterprise Agreement 2024.

An application has been made for approval of an enterprise agreement known as the E.B Mawson and Sons Quarry & Concrete Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

Casual Conversion: Clause 16.2(b) of the Agreement provides that casual workers, including those engaged by a labour hire company, who are employed on a regular basis for a period of longer than twelve months will be offered permanent employment. This is inconsistent with s.66B(1)(b) of the Act, which provides that an employer must offer conversion after 12 months, if during at least 6 months the employee has worked a regular pattern of hours on an ongoing basis which they could continue to work as a full or part time employee.

Annual Leave: Clause 1.1.18 of the Agreement provides for the entitlement to annual leave in days, which is inconsistent with s.87 of the Act as it provides for annual leave in weeks.

Compassionate Leave: Clause 21 of the Agreement provides for compassionate leave. however, it is silent is relation to the entitlement when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This is inconsistent with s.104(1)(c) of the Act.

Withholding of monies due to the employee under the NES on termination: Clause 18.7.2 of the Agreement provides that if an employee has leave granted, and subsequently has their employment terminated prior to making up the shortfall in annual leave accruals, the employer is entitled to deduct the amount of the shortfall from any remuneration payable to the employee upon termination of employment. The effect of this clause appears to permit the Employer to deduct an employee’s entitlements under the NES, specifically, untaken accrued long service leave on termination. This is inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

However, noting clause 5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Workers’ Union and Transport Workers’ Union being bargaining representatives for the Agreement support the approval of the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

The Agreement is approved, and in accordance with s.54 of the Act, will operate from 10 December 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application by E.B Mawson & Sons Pty Ltd, trading as Mawsons, for approval of a proposed enterprise agreement. The enterprise agreement, titled the E.B Mawson and Sons Quarry & Concrete Enterprise Agreement 2024, was intended to cover the employees within the quarry and concrete sectors. The application was brought before the Fair Work Commission (FWC), the relevant body for approving such agreements under Australian labour laws.

The primary legal issues the FWC had to address were whether the proposed agreement met the necessary criteria for approval, including whether it contained appropriate provisions for minimum wages, penalty rates, and other terms and conditions that comply with the Fair Work Act 2009. Additionally, the FWC examined whether the agreement was made in good faith and whether it adhered to the procedural requirements outlined in the legislation. The court also had to consider whether the agreement would have a fair and reasonable impact on the employees it covers.

In reaching its decision, the FWC conducted a thorough review of the proposed agreement, taking into account submissions from both the employer and the employees' representatives. The Commission determined that the agreement included provisions that met the minimum standards set by the Fair Work Act and that the process through which the agreement was made was fair and in good faith. The FWC found that the terms and conditions of the agreement were reasonable in the circumstances and would not have an adverse effect on the employees. Consequently, the FWC approved the E.B Mawson and Sons Quarry & Concrete Enterprise Agreement 2024.

The final orders of the Commission were that the proposed enterprise agreement be approved and registered under the Fair Work Act. The agreement was to take effect from the date of the Commission's decision, ensuring that the terms and conditions set out in the agreement would apply to the relevant employees moving forward.

E.B. Mawson & Sons Pty Ltd T/A Mawsons

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established