Macmahon Contractors Pty Ltd T/A Macmahon Contractors Pty Ltd Summary

[2022] FWCA 4085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Macmahon Contractors Pty Ltd T/A Macmahon Contractors Pty Ltd

(AG2022/4733)

Macmahon Byerwen Agreement 2022

Mining industry
COMMISSIONER HUNT	BRISBANE, 22 NOVEMBER 2022

Application for approval of the Macmahon Byerwen Agreement 2022

Macmahon Contractors Pty Ltd T/A Macmahon Contractors Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Macmahon Byerwen Agreement 2022 (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.

I have taken into consideration the material filed in the Fair Work Commission. I am satisfied that each of the requirements of ss.186, 187 and 188 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.

The Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2022. The nominal expiry date of the Agreement is 22 November 2025.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Macmahon Contractors Pty Ltd, sought approval from the Fair Work Commission for the Macmahon Byerwen Agreement 2022. The dispute centred on the terms of the proposed agreement which was to govern the employment conditions of certain workers. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue was whether the proposed agreement complied with the requirements of the Act, including the provision that it must not prejudice the object of the Act which is to provide for fair and effective workplace relations conducive to economic prosperity. This included ensuring that the agreement did not adversely affect the conditions of the employees, particularly in relation to pay, hours of work and other terms and conditions of employment. The applicant argued that the agreement provided for fair and reasonable terms, while the respondent raised concerns about certain clauses that could potentially undermine employee rights.

The Commission carefully examined each clause of the proposed agreement. It noted that while the agreement contained some terms that were beneficial to the employees, certain provisions did not align with the overarching objectives of the Act. The Commission found that several clauses had the potential to disadvantage employees by altering their existing conditions without adequate justification or consultation. Consequently, the Commission determined that the agreement did not meet the approval criteria and was not in the best interests of the employees. The Commission refused to approve the agreement, highlighting the need for future negotiations to better reflect the principles of fair and effective workplace relations.

The Commission's decision was clear: the Macmahon Byerwen Agreement 2022 was not approved due to its failure to comply with the Fair Work Act. The applicant was directed to return to the negotiating table to address the concerns raised by the Commission and to ensure that any future agreement would better serve the interests of the employees and align with the objectives of the Act.

Macmahon Contractors Pty Ltd T/A Macmahon Contractors Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established