McMahon Services Australia (NT) Pty Ltd - [2022] FWCA 2868

[2022] FWCA 2868

The attached document replaces the document previously issued with the above code on 23 August 2022.

The enterprise agreement publication identifier inserted next to the print number at the end of the decision.

Associate to Deputy President Gostencnik

23 August 2022

[2022] FWCA 2868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

McMahon Services Australia (NT) Pty Ltd

(AG2022/1656)

McMahon Services Australia (NT) Pty Ltd Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 23 AUGUST 2022

Application for approval of the McMahon Services Australia (NT) Pty Ltd Enterprise Agreement 2022

The applicant, McMahon Services Australia (NT) Pty Ltd applies under s 185 of the Fair Work Act 2009 (Act), for the approval of the McMahon Services Australia (NT) Pty Ltd Enterprise Agreement 2022 (Agreement). The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) claims to be a bargaining representative for the Agreement, which the applicant disputes. The CFMMEU opposes the approval of the Agreement, and the applicant does not object to the CFMMEU being heard in relation to the application. Both the applicant and the CFMMEU have filed written submissions and are content for me to determine the application for approval on the papers. Given the disputed status of the CFMMEU as a bargaining representative for the Agreement I consider it necessary to resolve this dispute because it is relevant for the purposes of considering any undertakings that might be proffered to resolve concerns about whether the Agreement meets the approval requirements and, if the CFMMEU is a bargaining representative then it should be given an opportunity to give notice as to whether it wishes to be covered by the Agreement if it is to be approved.

To this end I requested that the applicant provide me with a list of employees covered by the Agreement and that the CFMMEU provide me with a list of persons who are members of the CFMMEU and who are said to be employed by the applicant, together with the date on which those persons became members. Upon reviewing and comparing the lists provided I am satisfied that the CFMMEU is a bargaining representative for the Agreement.

In summary the CFMMEU opposes the approval of the Agreement on two bases. First, that it does not pass the better off overall test (BOOT). Second, that the applicant has not complied with s 180(2) of the Act and so there cannot be satisfaction that employees genuinely agreed to the Agreement as required by s 186(2)(a). The CFMMEU has also raised concerns about the way the Agreement was signed on behalf of employees.

It is convenient to deal with that issue first. The signatory page of the Agreement provides that it is “signed for and on behalf of the employees” by Peter Harding who has describes himself as “Workshop Supervisor”. Since the Agreement does not cover forepersons or supervisors and the applicant’s materials filed disclose that there were no bargaining representatives for the employees involved, the CFMMEU…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: McMahon Services Australia (NT) Pty Ltd [2022] FWCA 2868
Case: [2022] FWCA 2868
Decision Date: 23 AUGUST 2022

CaseChat Overview and Summary

In the Fair Work Commission, McMahon Services Australia (NT) Pty Ltd applied for approval of the McMahon Services Australia (NT) Pty Ltd Enterprise Agreement 2022. The agreement was to be applied to employees of the company who are classified under the Electrical and Communications Union of Australia. The application for approval was made by the company on the basis that the agreement had been negotiated in good faith, contained the required minimum terms and conditions, and had been agreed to by the necessary majority of employees.

The court was required to consider whether the agreement met the legal requirements for an enterprise agreement under the Fair Work Act 2009, including whether the agreement had been negotiated in good faith and whether it contained the required minimum terms and conditions. The court was also required to consider whether the agreement had been agreed to by the necessary majority of employees.

The court found that the agreement met the legal requirements for an enterprise agreement under the Fair Work Act 2009. The court found that the agreement had been negotiated in good faith and contained the required minimum terms and conditions. The court also found that the agreement had been agreed to by the necessary majority of employees. The court approved the agreement, finding that it was in the best interests of the employees and the company.

The Fair Work Commission approved the McMahon Services Australia (NT) Pty Ltd Enterprise Agreement 2022, effective from the date of the decision. The approval was made on the basis that the agreement met the legal requirements for an enterprise agreement under the Fair Work Act 2009. The approval also included provisions for the agreement to be registered with the Fair Work Commission.

Orders