Macmahon Mining Services Pty Ltd

[2019] FWCA 426

[2019] FWCA 426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Macmahon Mining Services Pty Ltd
(AG2018/5379)

MACMAHON MINING SERVICES WORKSHOP AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 31 JANUARY 2019

Application for approval of the Macmahon Mining Services Workshop Agreement 2018.

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

[2] The matter was allocated to my Chambers on 13 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 3 of the Agreement will be deleted and replaced with the following:

“Means the Company’s workshop located at 13 Heath Street, Lonsdale in the State of South Australia”.

•  Clause 4 of the Agreement will be deleted and replaced with the following:

“This Agreement covers all persons employed by Macmahon Mining Services Pty Ltd at the Workshop in Adelaide to:

(a) Perform work at the Workshop; or

(b) Perform duties at a Mine or Construction site as required from time to time”.

•  Clause 35.4 of the Agreement will be deleted and replaced with the following:

“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 41.3 of the Agreement will be deleted and replaced with the following:

“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 is not reasonable, or if the Employee has reasonable grounds to refuse to work”.

•  For the purpose of clause 10 of the Agreement, causal employees 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 concerning clause 3 and 4 of the Agreement has the effect of narrowing the scope of the Agreement consistent with the representations made to the employees who voted on the Agreement which referred to the renewal of the Macmahon Mining Services Lonsdale Agreement 2013. As a result, I am satisfied that these undertakings restore the original intent (as to scope) of the parties and do not represent a substantial change to the Agreement.

[7] 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.

[8] 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.

[9] 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

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