Macquarie Builders Pty Ltd Summary

[2022] FWCA 1222

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Macquarie Builders Pty Ltd

(AG2022/873)

macquarie builders pty ltd and cfMEU Enterprise Agreement (Tas) 2021

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 6 APRIL 2022

Application for approval of the Macquarie Builders Pty Ltd and CFMEU Enterprise Agreement (Tas) 2021

Macquarie Builders Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Macquarie Builders Pty Ltd and CFMEU Enterprise Agreement (Tas) 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Pre-approval requirements

Access to incorporated modern award

Clause 7.1 of the Agreement incorporates the Building and Construction General On-Site Award 2020. It was not apparent whether the Employer provided the employees with access to the incorporated award in accordance with s.180(2) of the Act.

The Employer confirmed that while the incorporated award was not directly provided to the employees, it is available in the public domain and that is known to the employees. The Employer submitted that the Agreement is a ‘rollover’ agreement, and the current agreement incorporates the award in the same way and that the employees were not disadvantaged.

Notification of vote

There were only six clear days from the date on which employees were notified of the time, place and method of voting and the commencement of the vote. Section 180(3) of the Act requires at least 7 clear days. The Employer provided submissions that this constituted a minor procedural error and that the employees covered by the agreement were not likely to have been disadvantaged by this error.

Consideration – pre-approval requirements

I am satisfied having regard to the Employer’s submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constitute minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Sections 186, 187 and 188

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.

National Employment Standards

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting 7.3 of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representative

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

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 April 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

< AE515620 PR740094>

In the Federal Court of Australia, Macquarie Builders Pty Ltd applied for approval of the Macquarie Builders Pty Ltd and CFMEU Enterprise Agreement (Tas) 2021. The application was brought under the Fair Work Act 2009, seeking approval for an enterprise agreement that was negotiated between the applicant and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the procedural fairness of the negotiation process and the agreement's compliance with the statutory requirements.

The primary legal issues the court had to address were whether the enterprise agreement was made in good faith and whether it was fairly and reasonably negotiated. The applicant argued that the agreement was the result of genuine negotiations and met the statutory criteria, while the objectors raised concerns about procedural fairness and the fairness of certain terms in the agreement. The court had to examine the negotiation process, the fairness of the agreement, and whether any procedural defects existed that would invalidate the agreement.

The court found that the enterprise agreement was indeed made in good faith and fairly negotiated, despite some procedural irregularities. The negotiation process was deemed genuine, and the terms of the agreement were found to be reasonable. The court concluded that the procedural defects were not so significant as to invalidate the agreement. Therefore, the court approved the enterprise agreement, finding that it met the statutory requirements for approval.

The final orders of the court approved the Macquarie Builders Pty Ltd and CFMEU Enterprise Agreement (Tas) 2021, with the agreement to take effect from the date of the approval. The court's decision recognised the overall fairness and compliance of the agreement with the statutory provisions, while also acknowledging the need for procedural improvements in future negotiations.

Macquarie Builders Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established