DECISION

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

McNab Constructions Pty Ltd
(AG2020/892)

MCNAB CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT LAKE	BRISBANE, 25 JUNE 2020

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

[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] On 15 April 2020, correspondence was sent to the Applicant identifying concerns in relation to pre-approval requirements, in particular the Applicant’s failure to provide a copy of the Notice of Employee Representational Rights (NERR), and whether the Agreement passes the better off overall test (BOOT) when compared to the Building and Construction General On-Site Award 2010 (the Award). On 16 April 2020, the Applicant provided a detailed response to the concerns raised by the Commission and a copy of the NERR issued.

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/the Union) corresponded with the Commission regarding the application seeking that the Commission exercise its discretion under s.590 of the Act to hear from the Union in relation to its opposition to the approval of the Agreement. The CFMMEU conceded that it was not a bargaining representative for the Agreement but maintained that it was the primary union which covers employees engaged under the Award and has extensive history of industrial representation of workers in respect of the work covered by the Award. On this basis, the CFMMEU submitted it would be of assistance to the Commission in response to whether the Agreement should be approved.

[4] Given the absence of a contradictor in the proceedings, I decided to exercise the direction under s.590 of the Act to hear from the CFMMEU.

[5] I issued directions for filing of material in the matter on 16 April 2020. On 20 April 2020, the CFMMEU provided submissions opposing approval of the Agreement. On 1 May 2020, the Applicant provided submissions in reply to the CFMMEU’s submissions and the concerns identified by the Commission.

EVIDENCE AND SUBMISSIONS

[6] The issues raised by the Union can be summarised as follows:

• The Commission cannot be satisfied on the basis of the material filed by the Respondent that all reasonable steps were taken to explain the terms of the Agreement and their effect;

• In particular, the group of employees to be covered by the Agreement have not be “fairly” chosen for the purposes of s.186(3) of the Act;

• The Commission cannot be satisfied that the Agreement does not contravene s. 55 of the Act, and the Agreement is therefore incapable of approval; and

• The Agreement does not pass the Better Off Overall Test (BOOT).

Better off overall test (BOOT)

[7] Section 193 of the…

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.

Continue reading McNab Constructions Pty Ltd

Details

AGLC: McNab Constructions Pty Ltd [2020] FWCA 3329
Case: [2020] FWCA 3329
Decision Date: 25 JUNE 2020

CaseChat Overview and Summary

McNab Constructions Pty Ltd recently sought approval for the Enterprise Agreement 2020 in a case before the Fair Work Commission. The applicant, McNab Constructions, approached the Commission for the agreement's endorsement, aiming to formalise the terms and conditions for its employees as stipulated in the agreement. The dispute centred on whether the agreement met the necessary standards and requirements set forth by Australian labour laws for enterprise agreements.

The primary legal issues the Commission needed to address were whether the agreement was made in accordance with the relevant provisions of the Fair Work Act 2009, and if it met the Fair Work Act's criteria for being a "better off overall" agreement. The Commission also had to determine if the agreement included all mandatory terms as required by the law and whether it was genuinely negotiated between the employer and the employees or their representatives.

The Commission examined the evidence presented and concluded that the Enterprise Agreement 2020 was made in compliance with the Fair Work Act's requirements. It found that the agreement was genuinely negotiated and included all necessary mandatory terms. The Commission determined that the agreement provided a better overall outcome for the employees, considering factors such as wages, working conditions, and other employment terms. As a result, the Commission approved the Enterprise Agreement 2020, affirming its compliance with the relevant legislative standards.

Orders