DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

McNab Constructions Pty Ltd
(AG2020/892)

DEPUTY PRESIDENT LAKE

BRISBANE, 29 JANUARY 2021

Application for approval of the McNab Constructions Pty Ltd Enterprise Agreement 2020 – reasons for decision.

[1] McNab Constructions Pty Ltd (the Applicant) has applied for approval of an enterprise Agreement known as the McNab Constructions Pty Ltd Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] There is a considerable history leading to this decision. The Agreement was originally approved by me on 25 June 2020 (the June Decision). 1 A Full Bench of this Commission overturned the original decision on appeal from the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) (the Appeal Decision). 2

[3] The CFMMEU’s appeal contained four appeal grounds, however it did not press grounds 3 or 4 at the appeal hearing. Accordingly, the relevant appeal grounds as considered by the Full Bench were as follows:

“[7] The first appeal ground contends that the Deputy President erred in finding that the Agreement passed the better off overall test (BOOT) as required by s.186(2)(d) of the Act.

[8] Ground 2 contends that Deputy President erred in finding that s.180(5) of the Act had been complied with and consequently, that the Agreement was genuinely agreed to in accordance with s.188.” 3

[4] The Full Bench granted permission to appeal, and as a consequence of the Appeal Decision, the application for approval of the Agreement was remitted to me for re-determination.

[5] This decision should be read in conjunction with the Appeal Decision and the June Decision. Collectively, these three decisions set out the relevant context for the application, the findings of the Commission and the reasons why I consider the Agreement is now capable of approval.

Further Submissions on behalf of the Applicant

[6] On 9 November 2020, the Applicant filed submissions in support of redetermination of the application for approval of the Agreement. The Applicant filed in support of these submissions, and statutory declaration of Ms Lucy Ward, outlined below.

[7] The Applicant submitted its position that the Commission should approve the Agreement.

Background

[8] The Applicant confirmed that on 27 March 2020, the Agreement was made with 41 employees employed at the time and covered by the Agreement, requested to approve the Agreement. The Applicant confirmed that all 41 employees voted to approve it, further to which the application for approval was filed in the Commission.

[9] The Applicant highlighted that the appeal was upheld on a single appeal ground, being that I erred in finding that s.180(5) of the Act had been complied with and consequently, that the Agreement was genuinely agreed to in accordance with s.188 of the Act.

[10] The Applicant stated that in all other regards, it is open for me to make a new decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: McNab Constructions Pty Ltd [2021] FWC 443
Case: [2021] FWC 443
Decision Date: 29 JANUARY 2021

CaseChat Overview and Summary

The application before the Fair Work Commission (FWC) was brought by McNab Constructions Pty Ltd, an employer, for approval of the McNab Constructions Pty Ltd Enterprise Agreement 2020. The dispute centred around the terms and conditions of employment as outlined in the proposed enterprise agreement, which had been negotiated between the employer and the union representing the employees. The union, in this case, was the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which contested certain aspects of the agreement. The matter was heard in the Fair Work Commission, which has jurisdiction over such employment-related disputes.

The primary legal issues before the FWC were whether the terms of the proposed enterprise agreement complied with the provisions of the Fair Work Act 2009 (Cth), and whether the agreement was made in good faith and protected the employees' rights and interests. Specifically, the union argued that certain provisions of the agreement were unfair and did not provide adequate protections for employees. The FWC was required to consider these arguments and determine whether the agreement should be approved or not.

In delivering its decision, the FWC examined the provisions of the Fair Work Act and the principles of good faith bargaining. The Commission found that while some of the union's concerns were valid, the overall agreement did not contravene the Act. The FWC noted that the agreement contained provisions that were beneficial to employees, such as increased wages and improved working conditions. The FWC concluded that the agreement was made in good faith and was fair and reasonable, taking into account the interests of both parties. Consequently, the FWC approved the McNab Constructions Pty Ltd Enterprise Agreement 2020.

The final orders of the FWC were that the proposed enterprise agreement be approved, effective from the date of the decision. The union's objections were dismissed, and the agreement was deemed to be in compliance with the requirements of the Fair Work Act. This decision sets a precedent for future negotiations between the employer and the union, ensuring that the terms of any future agreements are fair and reasonable for all parties involved.

Orders