McMahon Services Australia Pty Ltd

[2022] FWCA 2008

[2022] FWCA 2008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

McMahon Services Australia Pty Ltd

(AG2022/1839)

McMAHON SERVICES AUSTRALIA PTY LTD ENVIRONMENTAL SERVICES ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 20 JUNE 2022

Application for approval of the McMahon Services Australia Pty Ltd Environmental Services Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the McMahon Services Australia Pty Ltd Environmental Services Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by McMahon Services Australia Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 15 June 2022.

1. On 17 June 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issue that requires comment. Clause 3.6.3 of the Agreement provides for summary dismissal for reasons not contemplated by the Act, such as inefficiency and misconduct. Clause 1.5.4 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 3.6.3 will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 17 June 2022. The undertaking deals with the following topics:

·   The definition of a shift worker will be for the purposes of the NES.

·   When an employee seeks to utilise the provisions of clause 6.3.16 of the Agreement to access time off in lieu (TOIL), the provisions of clause 29.12(b)-29.12(l) of the Building and Construction General On-Site Award 2020 will apply.

1. No bargaining representatives were appointed.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 19 June 2026.

COMMISSIONER

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