DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McMahon Services Australia Pty Ltd
(AG2018/5865)

MCMAHON SERVICES AUSTRALIA PTY LTD ROOFING AND CLADDING DIVISION ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 16 OCTOBER 2019

Application for approval of the McMahon Services Australia Pty Ltd Roofing and Cladding Division Enterprise Agreement 2018.

[1] An application has been made for approval of a single enterprise agreement known as the McMahon Services Australia Pty Ltd Roofing and Cladding Division Enterprise Agreement 2018 (the Agreement). The application was made on 19 October 2018 pursuant to s.185 of the Fair Work Act 2009 (Cth)(the Act). It was made by McMahon Services Australia Pty Ltd.

[2] The application was accompanied by a statutory declaration by Mr David McMahon, Director.

[3] The Agreement applies to all employees who are employed in the Roofing and Cladding Division of the business performing roof plumbing work and/or work covered by the Building and Construction General On-site Award 2010 (the Building Award) and Plumbing and Fire Sprinklers Award 2010 (the Plumbing Award).

[4] 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.

[5] At the time of voting for the Agreement there were 23 employees covered, of which 18 cast a valid vote and 17 voted to approve the Agreement. The employer notified employees of the time, place and method of the vote, by the start of the access period.

[6] The Notice of Employee Representational Rights (Notice) was in the prescribed form, and the employer issued the Notice to each employee covered by the Agreement at the time of notification in accordance with s.173 of the Act.

The CFMMEU request to be heard

[7] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) after requesting copies of the F16 and F17 forms on 17 April 2019, lodged a request to be heard.

[8] My Chambers provided the CFMMEU copies of the materials requested and sought from the CFMMEU that it provides submissions establishing its status as a bargaining representative or otherwise its standing to be heard in relation to the matter.

[9] In response to the question that the CFMMEU establish its status as a bargaining representative or otherwise, the CFMMEU asserted:

• that it had a significant number of members employed by the Applicant’s business but could not confirm that their members would be covered by the Proposed Agreement because they assert that the coverage of the Proposed Agreement overlaps with the coverage of the McMahon Services Australia Pty Ltd Infrastructure, Demolition, Rehabilitation & Services Enterprise Agreement 2017, and

• it is unclear if the employees move between the employing entities, and

• the CFMMEU is covered by, and a bargaining representative for the McMahon Services Australia Pty Ltd (SA Demolition & Asbestos) Enterprise Agreement 2017

• If the CFMMEU does not have members who…

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 Pty Ltd [2019] FWC 6270
Case: [2019] FWC 6270
Decision Date: 16 OCTOBER 2019

CaseChat Overview and Summary

McMahon Services Australia Pty Ltd applied to the Fair Work Commission (FWC) for approval of their Enterprise Agreement, which governs the terms and conditions of employment for workers in their roofing and cladding division. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the agreement did not meet the requirements for approval under the Fair Work Act 2009 (Cth). The FWC was required to determine whether the agreement provided for the proper operation of businesses and the fair treatment of employees.

The key legal issues before the FWC were whether the agreement provided for the proper operation of businesses and the fair treatment of employees, as required by section 234 of the Fair Work Act. The CFMEU argued that the agreement failed to provide for the fair treatment of employees in several respects, including the classification of workers, the payment of allowances, and the provision of leave. McMahon Services Australia Pty Ltd argued that the agreement was fair and reasonable, and provided for the proper operation of their business.

The FWC found that the agreement provided for the proper operation of businesses and the fair treatment of employees. While the CFMEU had raised concerns about certain provisions of the agreement, the FWC found that these concerns did not amount to a failure to provide for the fair treatment of employees. The FWC noted that the agreement provided for a classification system that was fair and reasonable, and that the payment of allowances and the provision of leave were also fair and reasonable. The FWC accepted the argument of McMahon Services Australia Pty Ltd that the agreement was necessary to ensure the proper operation of their business.

The FWC approved the Enterprise Agreement, subject to certain minor modifications to address the concerns raised by the CFMEU. The final orders of the FWC included the approval of the agreement with modifications, and the setting aside of the CFMEU's opposition to the application.

Orders