DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Marshall & Brougham (Constructions) Pty Ltd
(AG2018/1483)

MARSHALL & BROUGHAM CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 18 SEPTEMBER 2018

Application for approval of the Marshall & Brougham Constructions Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Marshall & Brougham Constructions Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Marshall & Brougham (Constructions) Pty Ltd. The agreement is a single enterprise agreement.

[2] On 31 July 2018, the Commission contacted the employer raising a number of preliminary issues.

[3] On 8 August 2018, the employer provided an undertaking to the Commission.

[4] The matter was allocated to my Chambers on 17 August 2018.

[5] On 12 September 2018, I conducted a telephone conference with the parties to seek more information about aspects of the undertaking, and on 15 September the Applicant provided an amended undertaking. The undertaking deals with the following topics:

• For the purposes of clauses 21.4, which relates to the cashing out of annual leave, the employee must retain a balance of at least four week’s annual leave and be paid the full amount that would have been payable if they had taken the leave that was cashed out.

• In relation to where the employer seeks to terminate an employee on the basis of abandonment of employment, the employee will be provided with notice of the termination in accordance with the National Employment Standards.

• In relation to employees who are not in receipt of safety officer allowance but work an afternoon/night shift, and the majority of the working hours do not fall after 6:00pm, the employer will assess the employee’s earnings for the pay week and compare it with the employee’s entitlement under the award, and make up any shortfall (plus 1.5%).

[6] No bargaining representatives were appointed.

[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] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[9] 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.

[10] 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 of the Agreement is 25 September 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Marshall & Brougham (Constructions) Pty Ltd sought approval of its 2018 Enterprise Agreement. The application arose from negotiations between the employer and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which led to the proposed agreement. The CFMEU challenged the agreement, arguing it did not meet the 'better off overall test' (BOOT) under the Fair Work Act 2009. The Commission was required to determine whether the agreement provided employees with terms and conditions that were at least as good as those they would have received under the applicable award or registered agreement.

The central issue before the Commission was whether the proposed agreement satisfied the BOOT, ensuring employees were not worse off. This required a comparison of the agreement's terms with those of the Construction, Forestry, Maritime, Mining, Energy and Petrochemicals Union (CFMPEU) Multi-Enterprise Agreement 2017 and the applicable awards. The Commission considered factors such as wages, penalty rates, hours of work, and other employment conditions. Additionally, the Commission had to assess whether the agreement contained adequate provisions for dispute resolution and employee protections.

The Commission found that the proposed agreement met the BOOT. It concluded that the agreement provided employees with terms and conditions that were at least as good as, if not better than, those available under the CFMPEU Multi-Enterprise Agreement 2017 and applicable awards. The agreement included provisions for fair wages, penalty rates, and reasonable working hours, among other benefits. Furthermore, the Commission noted the agreement's provisions for dispute resolution and employee protections were adequate and aligned with contemporary standards. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Marshall & Brougham Constructions Pty Ltd Enterprise Agreement 2018, finding it met the better off overall test and provided employees with terms and conditions at least as good as those available under the CFMPEU Multi-Enterprise Agreement 2017 and applicable awards. The decision underscored the importance of ensuring employees' rights and protections are maintained in enterprise agreements.

Marshall & Brougham (Constructions) 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