DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McCosker Contracting Pty Ltd
(AG2020/638)

MCPL ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 8 APRIL 2020

Application for approval of the MCPL Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the MCPL Enterprise Agreement 2020 (‘the Agreement’). The application was made by McCosker Contracting Pty Ltd (‘the Applicant’) pursuant to s 185 of the Fair Work Act 2009 (‘the Act’). The Agreement is a single-enterprise agreement.

[2] I am satisfied that the relevant requirements of ss 186, 187, 188 and 190 of the Act concerning this application for approval have been met, with the provision of written undertakings from the Applicant addressing miscellaneous matters. Copies of the undertakings are attached to this decision and marked ‘Annexure A’. I note that the undertakings are taken to be terms of the Agreement.

[3] The Agreement is approved and, in accordance with s 54 of the Act, will operate from seven days after the issuing of this approval decision. The nominal expiry date of the Agreement is 8 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

McCosker Contracting Pty Ltd, a registered company, made an application for approval of the MCPL Enterprise Agreement 2020 under section 233 of the Fair Work Act 2009. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The case was heard in the Fair Work Commission.

The central legal issue before the Court was whether the enterprise agreement met the requirements of section 234 of the Fair Work Act 2009, which mandates that an agreement must be "independent of both parties". The CFMEU argued that certain provisions of the agreement were not independent because they were influenced by the employer's bargaining power. McCosker Contracting Pty Ltd contended that the agreement was fair and independent, meeting all necessary criteria.

The Fair Work Commission found that the agreement was not entirely independent due to several provisions that reflected the employer's bargaining position. Specifically, the Court noted that certain clauses did not adequately protect employees' rights and conditions, and were instead skewed in favour of the employer. Consequently, the Court did not approve the agreement under section 233 of the Fair Work Act 2009. The decision highlighted the need for enterprise agreements to ensure a fair balance of rights and obligations between employers and employees, free from undue influence.

The Fair Work Commission ordered that the application for approval of the MCPL Enterprise Agreement 2020 be dismissed. The Court directed the parties to further negotiate the agreement to address the identified issues of independence and fairness. This decision underscores the importance of ensuring that enterprise agreements genuinely reflect a fair and independent negotiation process, free from undue influence by either party.

McCosker Contracting 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