Macmahon Contractors Pty Ltd

Macmahon Contractors Pty Ltd applied to the Fair Work Commission for approval of the Macmahon Byerwen Agreement 2017, a single-enterprise agreement. The Construction, Forestry, Mining and Energy Union (CFMEU), which did not participate in the agreement's creation and has no members involved in its formation, requested to be heard on the application. The CFMEU sought to argue that the agreement should not be approved based on its concerns about the agreement's content and compliance with the Better Off Overall Test and the National Employment Standards. Macmahon objected to the CFMEU being heard on the application. The court had to decide whether the CFMEU should be allowed to be heard on the application under section 590 of the Fair Work Act 2009, which allows the Commission to inform itself in any manner it considers appropriate.

The court found that the CFMEU had not established a proper basis for the Commission to exercise its discretion to grant leave for it to be heard on the application. The CFMEU did not have a right, interest, or legitimate expectation concerning the agreement's approval. The court noted that the absence of a contradictor alone was not a sufficient reason for the Commission to allow a union that was a stranger to the bargaining process to be heard over the objections of one or more of the parties to the agreement. The court also found that granting leave to the CFMEU would not be consistent with the principles of comity and the objects of Part 2-4 of the Act, which aim to provide a simple, flexible, and fair framework for the making and approval of enterprise agreements.

The court concluded that the CFMEU should not be granted leave to be heard on the application to approve the agreement. The court's decision was an interim one and did not address the merits of the CFMEU's concerns about the agreement.