DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McMillan Contracting Services Pty Ltd
(AG2019/1654)

MCMILLAN CONTRACTING PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 18 JUNE 2019

Application for approval of the McMillan Contracting Pty Ltd Enterprise Bargaining Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the McMillan Contracting Pty Ltd Enterprise Bargaining Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by McMillan Contracting Services Pty Ltd. 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.

[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.

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

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 June 2019. The nominal expiry date of the Agreement is 17 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In McMillan Contracting Services Pty Ltd, the Fair Work Commission was asked to approve an enterprise bargaining agreement. The agreement was between McMillan Contracting Services Pty Ltd and a number of its employees represented by the Electrical Trades Union of Australia. The dispute centred on whether the agreement met the necessary requirements under the Fair Work Act 2009 for it to be approved and registered.

The key legal issues that the Commission needed to address included whether the agreement covered the correct bargaining unit, if the agreement was made in good faith, and if the provisions of the agreement were fair and reasonable. The Commission also needed to consider whether the agreement complied with the lawful terms and conditions as outlined in the Act. A particular point of contention was whether certain clauses relating to penalty rates for work on Sundays and public holidays were fair and reasonable.

In its decision, the Commission noted that the agreement was made in good faith and covered the correct bargaining unit. The Commission found that the parties had bargained cooperatively and in a spirit of mutual concession. Regarding the penalty rates, the Commission held that while the reduction was significant, it was justified by the broader terms and conditions of the agreement and the nature of the work undertaken by the employees. The Commission concluded that the agreement was fair and reasonable, taking into account the economic and operational circumstances of the employer and the workforce. Consequently, the Commission approved and registered the agreement.

The Fair Work Commission's final order was that the McMillan Contracting Pty Ltd Enterprise Bargaining Agreement 2019 be approved and registered. This decision was made on the basis that the agreement was made in good faith, covered the appropriate bargaining unit, and contained provisions that were fair and reasonable in the context of the overall agreement.

McMillan Contracting Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established