M Maintenance Services Pty Ltd

[2021] FWCA 5474

[2021] FWCA 5474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

M Maintenance Services Pty Ltd
(AG2021/6802)

MONADELPHOUS HEAVY LIFT PILBARA SHUT DOWN AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 2 SEPTEMBER 2021

Application for approval of the Monadelphous Heavy Lift Pilbara Shut Down Agreement 2021.

[1] M Maintenance Services Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Monadelphous Heavy Lift Pilbara Shut Down Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised the following concern with the Employer in regard to Clause 26(c-d) of the Agreement:

“c) Subject to an authorisation given by an Employee setting out the reason and amount for deductions, monies paid in advance by the Company to an Employee or any overpayments made may be recovered from any accrued entitlement owing to them.

d) Upon termination of employment for any reason, an Employee must return immediately all property belonging to the Company. Subject to an authorisation given by an Employee setting out the reason and amount for deductions, any outstanding equipment, costs or monies owed to the Company will be deducted from the Employee's final payment of monies made by the Company.”

[3] I informed the Employer that I did not consider the terms are likely to be enforceable when regard is had for s.324 of the Act and the potential for deductions to made from NES entitlements. I informed the Employer that would be noted in any decision to approve the Agreement. The Employer noted the Commission’s concern.

[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was invited to provide any views it had as to the Employer’s responses to the concerns raised. The CFMMEU did not provide any views.

[5] I have taken into consideration the material filed in the Commission. 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 Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The CFMMEU 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) of the Act I note that the Agreement covers the CFMMEU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 September 2021. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

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