M & B Civil Pty Ltd Summary

[2023] FWCA 2931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

M & B Civil Pty Ltd

(AG2023/2927)

M&B CIVIL PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 12 SEPTEMBER 2023

Application for approval of the M&B Civil Pty Ltd Enterprise Agreement 2023

Introduction

M & B Civil Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the M&B Civil Pty Ltd Enterprise Agreement 2023 (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

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 Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 12 August 2023.

Model Consultation Terms

The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The Australian Workers’ Union (AWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the AWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 September 2023. The nominal expiry date of the Agreement is 19 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the parties involved were M&B Civil Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred around the application for the approval of the Enterprise Agreement 2023. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The legal issues that required resolution involved the fairness and compliance of the agreement with statutory requirements. Specifically, the Commission had to assess whether the agreement provided for adequate minimum terms and conditions, and whether it was free from any elements that would contravene the Act.

The Commission examined the submissions from both parties, focusing on the provisions of the agreement and their implications for the employees. The union argued that certain clauses were unfair and did not meet the statutory requirements, while the employer maintained that the agreement was fair and met all necessary criteria. The Commission considered the overall fairness of the agreement, the bargaining process, and the compliance with relevant provisions of the Fair Work Act. After thorough consideration, the Commission found that the agreement was generally fair and met the requirements for approval. The Commission noted some minor issues but concluded that they did not significantly detract from the overall fairness of the agreement.

Following its analysis, the Commission approved the Enterprise Agreement 2023. The decision recognised that while there were some areas of concern, the agreement as a whole provided for fair terms and conditions of employment. The Commission's decision was grounded in the statutory framework provided by the Fair Work Act and the Fair Work Regulations. The final orders included the approval of the agreement with the specified effective date, and the agreement was to be registered with the Fair Work Commission.

M & B Civil Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established