McMahon Services Australia Pty Ltd

Case [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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Details
AGLC
McMahon Services Australia Pty Ltd [2022] FWCA 2008
Case
[2022] FWCA 2008
Decision Date

CaseChat Overview and Summary

McMahon Services Australia Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement. The agreement was between McMahon Services Australia Pty Ltd and its employees, who were covered by the award of the Electrical Trades Union of Australia. The applicants sought to alter certain terms and conditions of employment, including pay rates, leave entitlements, and working hours. The dispute arose when the Fair Work Commission was asked to decide whether the agreement complied with the requirements of the Fair Work Act 2009.

The legal issues the court was required to decide included whether the agreement was a genuine enterprise agreement, whether it complied with the provisions of the Fair Work Act, and whether the agreement was fair and reasonable in all its terms. The court also needed to determine whether the agreement provided for adequate protections for employees, including provisions for minimum wages, leave entitlements, and working hours.

The court found that the agreement was a genuine enterprise agreement that complied with the requirements of the Fair Work Act. The court was satisfied that the agreement provided for adequate protections for employees, including provisions for minimum wages, leave entitlements, and working hours. The court also found that the agreement was fair and reasonable in all its terms, taking into account the nature of the business and the bargaining power of the parties. The court approved the agreement, subject to certain modifications to ensure compliance with the Fair Work Act.

The court ordered that the agreement be approved, subject to certain modifications. The modifications included the addition of provisions to ensure compliance with the Fair Work Act, including provisions for minimum wages, leave entitlements, and working hours. The court also ordered that the agreement be registered with the Fair Work Commission, and that the agreement be brought into effect on the date of the decision. The court noted that the agreement provided for a fair and reasonable outcome for both parties, and that it was in the best interests of the employees and the business.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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