McMahon Services Australia Pty Ltd T/A McMahon Services

[2022] FWCA 478

[2022] FWCA 478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

McMahon Services Australia Pty Ltd T/A McMahon Services

(AG2021/9343)

McMahon Services Australia Pty Ltd (SA Demolition & Asbestos) Enterprise Agreement 2021

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 14 FEBRUARY 2022

Application for approval of the McMahon Services Australia Pty Ltd (SA Demolition & Asbestos) Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the McMahon Services Australia Pty Ltd (SA Demolition & Asbestos) Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by McMahon Services Australia Pty Ltd T/A McMahon Services (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 3 February 2022.

1. On 8 February 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. The Applicant has submitted an undertaking in the required form dated 9 February 2022. The undertaking deals with the following topics:

·   The company will only make deductions under the Agreement in a manner consistent with section 324 of the Act and will not make deductions from any entitlement under the National Employment Standards (NES) (e.g. from annual leave).

·   Apprentices and trainees are not covered by the Agreement.

·   An employee may be employed to work ordinary hours on a part-time daily hire basis on any of the days Monday to Friday, with any such arrangement to be agreed by the company and employee prior to commencement. Any time worked in addition to, or outside of, the agreed hours will be treated as overtime in accordance with clause 5.6.1 of the Agreement.

·   The definition of night shift will be a shift starting at or after 3.00pm and before 4.30am.

·   Where an employee is performing work that would entitle them to the Air-Conditioning Cleaning allowance, the employee will be paid the greater of the amount prescribed in clause 4.3 of the Agreement or the penalty rate that would otherwise be applicable.

·   If an employee is required to work for more than 6 hours without a meal break, they will be paid at a rate of 200% for the period from 6 hours after the starting time until the commencement of the meal break.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not object to the undertaking.

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. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

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 20 December 2025.

COMMISSIONER

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