DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell
(AG2018/6899)

MCD ENTERPRISE AGREEMENT QUEENSLAND AND NORTHERN TERRITORY 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 MAY 2019

Application for approval of the MCD Enterprise Agreement Queensland and Northern Territory 2018.

[1] An application has been made for approval of an enterprise agreement known as the MCD Enterprise Agreement Queensland and Northern Territory 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell. 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.

[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 Australian Workers’ 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 May 2019. The nominal expiry date of the Agreement is 30 April 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

McConnell Dowell Constructors (Aust) Pty Ltd, trading as McConnell Dowell, applied for the approval of the MCD Enterprise Agreement Queensland and Northern Territory 2018. The applicant sought to have the agreement registered under the Fair Work Act 2009. The Australian Building and Construction Commission opposed the application on various grounds, including that the agreement failed to meet the good faith bargaining requirement of section 174 of the Act.

The central issue before the court was whether the enterprise agreement complied with the statutory requirements for registration, specifically whether the parties had engaged in good faith bargaining as mandated by section 174. The court had to consider whether the agreement was the product of genuine negotiations and if any procedural flaws occurred during the bargaining process. The court also needed to determine whether the agreement contained provisions that were contrary to the public interest or had not been appropriately considered by the parties.

The Fair Work Commission found that while the parties had engaged in negotiations, there were significant procedural deficiencies that undermined the good faith aspect of the bargaining process. The applicant failed to adequately address the concerns raised by the commission regarding the negotiation process. The commission concluded that the agreement did not meet the requirements of section 174, and therefore, the application for approval was not successful. The court dismissed the application, finding that the agreement did not reflect the outcome of genuine negotiations between the parties.

The final order of the court was that the application for approval of the MCD Enterprise Agreement Queensland and Northern Territory 2018 be dismissed. The agreement was not registered under the Fair Work Act 2009.

McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established