MACS Australia Group Pty Ltd

[2022] FWCA 3931

[2022] FWCA 3931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MACS Australia Group Pty Ltd

(AG2022/4423)

MACS Australia Group Pty Ltd - Pluto Train 2 Project Agreement

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 9 NOVEMBER 2022

Application for approval of the MACS Australia Group Pty Ltd - Pluto Train 2 Project Agreement

1. An application has been made for approval of a greenfields agreement known as the MACS Australia Group Pty Ltd - Pluto Train 2 Project Agreement (the Agreement). The application was made by MACS Australia Group Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

1. This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Manufacturing Workers' Union, Australian Workers' Union, Construction, Forestry, Maritime, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

1. The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 27.2 – Public Holidays.

·   Appendix 3, clause 11(d)(ii) – Rest and Recreation Leave.

·   Appendix 4, clause 5(c) – Rest and Recreation Leave.

However, noting the undertaking provided by the Applicant, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Australian Manufacturing Workers' Union, Australian Workers' Union, Construction, Forestry, Maritime, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers these organisations.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 November 2022. The nominal expiry date of the Agreement is 9 November 2026.

COMMISSIONER

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Annexure A