McMahon Services Australia Pty Ltd - [2024] FWCA 4016

[2024] FWCA 4016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

McMahon Services Australia Pty Ltd

(AG2024/3119)

MCMAHON SERVICES AUSTRALIA PTY LTD - ASURCO ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 19 NOVEMBER 2024

Application for approval of the McMahon Services Australia Pty Ltd – Asurco Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the McMahon Services Australia Pty Ltd – Asurco Enterprise Agreement 2024 (Proposed Agreement). The application was made by McMahon Services Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. It is not disputed by any party that the notification time for the Agreement was a date prior to this. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force in relation to genuine agreement immediately prior to 6 June 2023.

The Form F17B filed with the application also indicates that the Agreement was made on 3 August 2024. As the Agreement was made on a date on or after 6 June 2023, recent changes to the Act made in relation to the better off overall test apply to the application.

The Applicant is the employer covered by the Proposed Agreement and the Construction Forestry and Maritime Employees Union (CFMEU) was a bargaining representative for the Proposed Agreement.

It is declared in the Form F17B filed with the application that at the time of the vote 56 employees were covered by the Proposed Agreement.

CFMEU intervention

The CFMEU filed a Form F18 Declaration indicating that it opposed the Proposed Agreement’s approval on the following grounds:

clause 1.10.5 of the Proposed Agreement contains objectionable terms;
clause 2.1.7 is contrary to the National Employment Standards (NES);
the Proposed Agreement does not pass the better off overall test (BOOT);
the Applicant did not take all reasonable steps to provide access to copies of the material incorporated by reference in the Proposed Agreement as required by s.180(2) (as it stood prior to 6 June 2023;
the Applicant did not take all reasonable steps to ensure the Proposed Agreement’s terms and their effect were explained to employees as required by s.180(5) of the Act.

I deal with each of these matters below.

Does clause 1.10.5 of the Proposed Agreement contain objectionable terms?

Clause 1.10.5…

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 [2024] FWCA 4016
Case: [2024] FWCA 4016
Decision Date: 19 NOVEMBER 2024

CaseChat Overview and Summary

McMahon Services Australia Pty Ltd applied to the Fair Work Commission for approval of the McMahon Services Australia Pty Ltd – Asurco Enterprise Agreement 2024. Asurco, a union, objected to the application, contending the agreement was not in the best interests of the employees. The Fair Work Commission was required to determine whether the agreement met the statutory criteria for approval, including whether it promoted harmonious, productive and cooperative workplace relations.

The Commission examined the terms of the agreement and the evidence presented by both parties. It considered whether the agreement contained minimum terms and conditions of employment, whether it was in the best interests of the employees, and whether it promoted harmonious, productive and cooperative workplace relations. The Commission noted the union's objections but also found that the agreement contained terms that were no less favourable than the applicable awards and provided for a mechanism to address disputes. The Commission was satisfied that the agreement met the statutory criteria for approval.

Accordingly, the Fair Work Commission approved the McMahon Services Australia Pty Ltd – Asurco Enterprise Agreement 2024. The Commission noted that the agreement would be registered as an enterprise agreement under the Fair Work Act 2009 and would have effect from the date of registration. The union's objections were rejected.

Orders