DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2018/5422)

MACMAHON BASE WORKSHOPS AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 31 JANUARY 2019

Application for approval of the Macmahon Base Workshops Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Macmahon Base Workshops Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Macmahon Contractors Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 17 December 2018.

[3] On 11 January 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 15 January 2019. The undertaking deals with the following topics:

• Clause 41.4 of the Agreement will be replaced in its entirety with:

“The Employee is required to inform the Company of his or her intention to take personal leave, and the estimated duration of the period of leave, as soon as practicable. If possible, Employees should endeavour to notify the Company prior to the commencement of their shift.”

• Clause 47.3 of the Agreement will be replaced in its entirety with:

“Given the nature of the Company’s business, it is anticipated that it may be reasonable for Employees to work on public holidays. In such circumstances, the Company may request an Employee work on a public holiday. Employees may only refuse such a request if the request to work is not reasonable, or if the Employee has reasonable grounds to refuse to work.”

• The ordinary hours of work for a trainee will be performed any day between Monday – Friday (inclusive). Trainees will not be required to work non-consecutive afternoon or night shifts.

• Trainees will be entitled to the benefit of such other clauses of the Agreement which may be relevant to their particular circumstances, which includes the payment of overtime rates and weekend penalties.

• For the purpose of clause 10 of the Agreement, casuals will not be engaged on a regular and systematic basis.

• An employee (other than a casual employee), who is a seven day shift worker and who is regularly rostered to work on Sundays and public holidays is entitled to an additional week of annual leave as per the National Employment Standards.

[5] A copy of the undertaking has been provided to the employee bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The employee bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 7 February 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicants, Macmahon Contractors Pty Ltd, sought approval of the Macmahon Base Workshops Agreement 2018, which was intended to establish a new enterprise agreement under the Fair Work Act 2009. The applicants argued that the agreement was appropriate for the workers involved and would serve the interests of the employees, employers, and the broader industry. The dispute was heard by the Fair Work Commission, an independent statutory tribunal established under the Fair Work Act.

The primary legal issue before the Commission was whether the agreement met the requirements set out in the Fair Work Act for enterprise agreements to be approved. Specifically, the Commission had to consider whether the agreement provided for minimum terms and conditions, including minimum wages, that were no less favourable than the applicable award or registered agreement. The Commission also had to determine whether the agreement provided for a proper process for resolving workplace disputes and whether it had been made in good faith and without coercion.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement met the requirements for approval under the Fair Work Act. The Commission noted that the agreement provided for minimum terms and conditions that were no less favourable than the applicable award and that it included a proper process for resolving workplace disputes. The Commission also found that the agreement had been made in good faith and without coercion. Based on these findings, the Commission approved the Macmahon Base Workshops Agreement 2018.

The Fair Work Commission approved the Macmahon Base Workshops Agreement 2018, finding that it met the requirements set out in the Fair Work Act for enterprise agreements to be approved. The Commission found that the agreement provided for minimum terms and conditions that were no less favourable than the applicable award, included a proper process for resolving workplace disputes, and had been made in good faith and without coercion. The Commission's approval of the agreement will now serve as a new enterprise agreement between the applicants and the workers involved.

Macmahon Contractors Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established