DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McMahon Services Australia Pty Ltd T/A McMahon Services Australia
(AG2019/3947)

MCMAHON SERVICES AUSTRALIA PTY LTD ADELAIDE CIVIL PROJECTS ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 29 OCTOBER 2019

Application for approval of the McMahon Services Australia Pty Ltd Adelaide Civil Projects Enterprise Agreement 2019..

[1] An application has been made for approval of an enterprise agreement known as the McMahon Services Australia Pty Ltd Adelaide Civil Projects Enterprise Agreement 2019. (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 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 29 October 2019 and, in accordance with s.54, will operate from 5 November 2019. The nominal expiry date of the Agreement is 28 October 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of McMahon Services Australia Pty Ltd T/A McMahon Services Australia, the Fair Work Commission was asked to approve an enterprise agreement. The agreement in question was the Adelaide Civil Projects Enterprise Agreement 2019. This matter arose because the union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), and the employer, McMahon Services Australia, had entered into negotiations to establish terms and conditions of employment for the employees. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009 for approval and registration.

The legal issues before the Commission involved determining if the agreement was made in good faith, if it contained the necessary minimum terms and conditions, and if it was fair and reasonable. The Commission also had to consider whether the agreement complied with the requirements of the Fair Work Act, including the provisions related to the negotiation, making, and registration of enterprise agreements. Furthermore, the Commission needed to assess whether the agreement was made without coercion, duress, or other forms of unfair conduct, and if it provided for a proper process for the resolution of disputes.

The Commission found that the agreement was made in good faith and contained the necessary minimum terms and conditions as required by the Fair Work Act. The Commission also determined that the agreement was fair and reasonable, taking into account the interests of both the employees and the employer. The Commission was satisfied that the agreement complied with all the relevant provisions of the Act and that it was made without coercion, duress, or other forms of unfair conduct. Consequently, the Commission approved the agreement and ordered its registration.

The final orders of the Commission included the approval and registration of the Adelaide Civil Projects Enterprise Agreement 2019, with the agreement to take effect from the date of registration. The Commission also directed that the agreement be published in the Fair Work Commission's published register of approved agreements. Additionally, the Commission ordered that the agreement would remain in force until the earlier of the agreement being terminated, varied, or replaced by a new agreement.

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