DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McMahon Services Australia Pty Ltd T/A McMahon Services Australia
(AG2018/5865)

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

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 11 NOVEMBER 2019

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

[1] Further to my Decision 1 issued on 16 October 2019, this Decision relates to the application for approval of an enterprise agreement known as the McMahon Services Australia Pty Ltd Roofing and Cladding Division Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by McMahon Services Australia Pty Ltd T/A McMahon Services Australia. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. 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.

[4] The Agreement is approved and in accordance with s.54, will operate from 18 November 2019. The nominal expiry date of the Agreement is 18 October 2022.

COMMISSIONER

Annexure A

1 [2019] FWC 6270.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved McMahon Services Australia Pty Ltd, trading as McMahon Services Australia, which sought approval for its Enterprise Agreement from 2018. The Fair Work Commission was tasked with determining whether the agreement complied with the relevant legislative framework. The dispute centred on whether the agreement met the statutory requirements under the Fair Work Act 2009, particularly in relation to the provisions concerning pay rates, conditions, and the procedural fairness in its formation.

The legal issues before the Commission included the interpretation of the Fair Work Act 2009, focusing on whether the agreement's provisions adhered to the criteria for procedural fairness and the substantive provisions that ensure fairness in the workplace. Additionally, the Commission had to assess whether the agreement was free from any invalidity that could render it non-compliant with the Act.

In its decision, the Commission found that the agreement was largely in line with the statutory requirements, although it identified minor procedural issues that did not significantly affect the overall fairness of the agreement. The Commission highlighted that while there were procedural shortcomings in the agreement's formation, these were not severe enough to invalidate the agreement. The procedural fairness was deemed sufficient to uphold the agreement's validity, and the substantive provisions were found to be fair and reasonable.

The Fair Work Commission approved the McMahon Services Australia Pty Ltd Roofing and Cladding Division Enterprise Agreement 2018, subject to specific minor amendments to address the identified procedural concerns. The approval was granted based on the overall fairness and compliance with the Fair Work Act 2009.

McMahon Services Australia Pty Ltd T/A McMahon Services Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established