Mammoet Australia Pty Ltd T/A Mammoet

[2024] FWCA 1869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mammoet Australia Pty Ltd T/A Mammoet

(AG2024/1329)

MAMMOET AUSTRALIA PTY LTD WESTERN AUSTRALIAN SHUTDOWN SERVICES AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 22 MAY 2024

Application for approval of the Mammoet Australia Pty Ltd Western Australian Shutdown Services Agreement 2023

An application has been made for approval of an enterprise agreement known as the Mammoet Australia Pty Ltd Western Australian Shutdown Services Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mammoet Australia Pty Ltd T/A Mammoet. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that all the employees intended to be covered by the Agreement are casual employees. I sought clarification from the Employer regarding the eligibility of the casual employees who voted on the proposed Agreement as there may not have been a majority of employees who casted a valid vote during the access period. The Applicant submitted that 56 casual employees voted on the Agreement and worked during the access period whereas 10 casual employees voted on the Agreement but did not work during the access period. Although it appears that 10 of the casuals who voted were not engaged to work during the access period, and therefore not eligible to vote, this did not affect the outcome of the vote and the Agreement was still approved by a majority of the employees who voted.

The Construction, Forestry and Maritime Employees Union 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) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 29 May 2024. The nominal expiry date of the Agreement is 21 May 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mammoet Australia Pty Ltd applied to the Administrative Appeals Tribunal for approval of the Mammoet Australia Pty Ltd Western Australian Shutdown Services Agreement 2023. The respondent, Worksafe Western Australia, did not oppose the application but made submissions regarding the appropriate conditions of approval. The dispute concerned the terms of the agreement between the applicant and Worksafe for shutdown services in Western Australia.

The primary legal issue before the tribunal was whether the terms and conditions of the agreement were consistent with the legislative requirements for such agreements. Specifically, the tribunal needed to consider whether the agreement appropriately safeguarded the health, safety, and welfare of workers, as mandated by the Occupational Safety and Health Act 1984. The tribunal also needed to determine if the agreement sufficiently aligned with the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988.

After reviewing the submissions and the evidence presented, the tribunal concluded that the agreement met the necessary legislative requirements. The tribunal found that the terms of the agreement adequately protected the health and safety of workers and were consistent with the statutory framework. Consequently, the tribunal approved the agreement, subject to certain conditions that were deemed appropriate to ensure ongoing compliance with the relevant safety legislation. The tribunal's decision was based on a comprehensive analysis of the legislative provisions, the content of the agreement, and the submissions from both parties. The tribunal's order formally approved the agreement, subject to the specified conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established