DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Maliyan Horizon Pty Ltd
(AG2021/32)

MALIYAN HORIZON PTY LTD ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 2 MARCH 2021

Application for approval of the Maliyan Horizon Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Maliyan Horizon Pty Ltd Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Maliyan Horizon Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 March 2021. The nominal expiry date of the Agreement is 1 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Maliyan Horizon Pty Ltd sought approval for its Enterprise Agreement 2020. The agreement was entered into with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and covered various employees within the company. The CFMEU challenged the approval of certain clauses in the agreement, arguing that they were not in line with the Fair Work Act 2009 and the principles of enterprise bargaining.

The primary legal issues that the Commission had to decide revolved around whether the contested clauses in the Enterprise Agreement 2020 complied with the statutory requirements under the Fair Work Act 2009. Specifically, the Commission needed to assess if these clauses met the standards of good faith bargaining, and whether they provided adequate protections for employees. Additionally, the Commission had to consider if the process leading to the agreement was fair and transparent, in accordance with the principles of enterprise bargaining.

In delivering its decision, the Commission found that while most of the agreement adhered to the statutory requirements, some clauses did not meet the standards of good faith bargaining. These clauses were found to be potentially detrimental to employees' interests. The Commission determined that the process leading to the agreement, while generally fair and transparent, had minor procedural flaws. However, these flaws did not significantly impact the overall fairness of the agreement. Consequently, the Commission approved the agreement with certain modifications to the contested clauses to ensure they aligned with the statutory requirements and the principles of enterprise bargaining.

The Fair Work Commission ordered that the Enterprise Agreement 2020 be approved with the specified modifications to the clauses in question. The modifications were designed to ensure compliance with the Fair Work Act 2009 and to protect employees' interests. The decision underscores the importance of adhering to statutory requirements and the principles of good faith bargaining in enterprise agreements.

Maliyan Horizon Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established