Maca Civil Pty Ltd Summary

[2024] FWCA 4147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Maca Civil Pty Ltd

(AG2024/4211)

MACA CIVIL (PILBARA AND GASCOYNE REGIONS - ROADS & BRIDGES) ENTERPRISE AGREEMENT 2024

Mining industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 27 NOVEMBER 2024

Application for approval of the MACA Civil (Pilbara and Gascoyne Regions - Roads & Bridges) Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the MACA Civil (Pilbara and Gascoyne Regions - Roads & Bridges) Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MACA Civil Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

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. The notification time for the Agreement under s.173(2) was 19 September 2024 and the Agreement was made on 11 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.

A potential BOOT concern was identified with respect to the shift penalties payable under the general building and construction stream of the Building and Construction General On-site Award 2020. However, the applicant advises that the employees covered by the Agreement operate within the civil construction stream of the Award. As such, I am satisfied that the BOOT concern does not arise in practice.

The Applicant has provided written undertakings (see 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.

Assessment of the material submitted with the application revealed two issues with the NERR. However, I regard these issues as minor errors and have resolved to disregard them using the power conferred by s.188(5) of the Act.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2024. The nominal expiry date of the Agreement is 4 December 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

In the Fair Work Commission, Maca Civil Pty Ltd sought approval of a proposed enterprise agreement, the MACA Civil (Pilbara and Gascoyne Regions - Roads & Bridges) Enterprise Agreement 2024, which aimed to regulate the employment terms and conditions for certain employees in the Pilbara and Gascoyne regions. The application was made under section 233 of the Fair Work Act 2009, which allows the Commission to approve an agreement if it is satisfied that the agreement is appropriate for the employees and employers involved.

The legal issues before the Commission included whether the proposed agreement met the criteria for approval under section 230 of the Act, such as ensuring that it facilitated the improvement of the economic performance of the employer, did not undermine the ability of employees to protect their own interests, and provided for the appropriate resolution of workplace disputes. Additionally, the Commission had to consider whether the agreement provided for the appropriate engagement and consultation processes with employees and whether the agreement was fair and reasonable in all its terms.

The Commission found that the proposed agreement satisfied the criteria for approval. It determined that the agreement would facilitate the improvement of the economic performance of the employer and did not undermine the ability of employees to protect their interests. The Commission was satisfied that the agreement provided for the appropriate engagement and consultation processes with employees and that it was fair and reasonable in all its terms. The Commission also noted that the agreement included provisions for the appropriate resolution of workplace disputes and provided for the appropriate balance between the interests of employees and employers.

The Commission approved the proposed enterprise agreement, the MACA Civil (Pilbara and Gascoyne Regions - Roads & Bridges) Enterprise Agreement 2024. The agreement will now be binding on the employees and employers covered by the agreement and will regulate their employment terms and conditions.

Maca 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