DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mechanical Maintenance Solutions Pty Ltd
(AG2018/1899)

MMS LATROBE VALLEY ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 13 DECEMBER 2019

Application for approval of the MMS Latrobe Valley Enterprise Agreement 2018.

[1] On 2 October 2019, I decided that I was not satisfied the MMS Latrobe Valley Enterprise Agreement 2018 (the Agreement)had been genuinely agreed. 1 The background to the matter is set out in my earlier Decision.2

[2] Undertakings as well as further submissions and a fourth witness statement of Ryan Murphy have been received in response to the concern. I expressed a preliminary view on 25 November 2019 that the opportunity for parties to lead evidence in relation to the application has now passed. I confirm that view. The fourth witness statement of Mr Murphy is not admitted.

[3] The question is whether, having regard to the materials now before me, I am satisfied that the Agreement has been genuinely agreed such that the Agreement must be approved.

What is the scope of the deficiency?

[4] The Decision of 2 October 2019 sets out my concern that Mechanical Maintenance Solutions had not taken all reasonable steps to ensure the explanation given to employees under section 180(5) was adequate. In summary, I held:

1. It was a material omission that there was no discussion with employees about how the Agreement would displace the various instruments incorporated by reference in two existing greenfields agreements.

2. Given the omission, I was not satisfied that employees were put in a position to fully appreciate the effect on their existing conditions of employment in voting to approve the Agreement.

[5] The Agreement displaces the Mechanical Maintenance Solutions Pty Ltd (MMS) Latrobe Valley (Victoria) Power Industry Electrical (ETU) Greenfields Enterprise Agreement 2013. 3 The Greenfields Electrical Agreement incorporates the terms of the Electrical, Electronic and Communications Contracting Award 2010, except in relation to the model dispute resolution, award flexibility and consultation terms. To the extent that there is an inconsistency between the two, the Greenfields Electrical Agreement prevails over the incorporated award term.

[6] The Agreement also displaces the the Mechanical Maintenance Solutions P/L (MMS) Latrobe Valley Power Stations (AMWU and CFMEU) Greenfields Enterprise Bargaining Agreement 2012-2016 4. It is instructive to set out clause 5 of the Greenfields Manufacturing Agreement in full:

“5 RELATIONSHIP BETWEEN PARTS 1 AND 2

5.1 The provisions of the Metal, Engineering and Associated Industries Award 1998 - Part I - Metal, Engineering and Associated Industries Employees (the "Award"); Metal, Engineering and Associated Industries Award 1998 - Part IV Long Service Leave and the Metal, Engineering and Associated Industries (Accident Pay, Victoria) Award 1998 (together, "the Awards"), as they stood on 1 March 2006 are incorporated into this Agreement. Where there is any inconsistency between an express provision of this Agreement and a provision in the Awards, the provisions of this Agreement shall prevail to the extent of any inconsistency. Further,…

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 Mechanical Maintenance Solutions Pty Ltd

Details

AGLC: Mechanical Maintenance Solutions Pty Ltd [2019] FWCA 8471
Case: [2019] FWCA 8471
Decision Date: 13 DECEMBER 2019

CaseChat Overview and Summary

Mechanical Maintenance Solutions Pty Ltd applied to the Fair Work Commission for approval of the MMS Latrobe Valley Enterprise Agreement 2018. The applicant argued that the agreement, which was negotiated in good faith and involved a significant number of employees, was in the interests of the employees and the business. The dispute arose as the applicant sought to implement the agreement, which was intended to govern the terms and conditions of employment for the employees covered by it.

The legal issues before the commission involved assessing whether the agreement met the statutory requirements for approval, including whether it was negotiated in good faith and whether it was in the best interests of the employees and the business. The commission also had to determine whether the agreement complied with the Fair Work Act 2009 and other relevant legislation. Furthermore, the commission considered whether the agreement addressed the employees' needs and whether it would provide stability and certainty in the workplace.

After considering the submissions from both parties, the commission found that the agreement was negotiated in good faith and met the requirements for approval. The commission concluded that the agreement was in the best interests of the employees and the business, as it provided for a fair and reasonable outcome for all parties involved. The commission also found that the agreement complied with the Fair Work Act 2009 and other relevant legislation, and that it addressed the employees' needs and provided stability and certainty in the workplace. Therefore, the commission approved the agreement.

The commission made orders approving the MMS Latrobe Valley Enterprise Agreement 2018 as a registered agreement. The agreement will now govern the terms and conditions of employment for the employees covered by it, and will provide stability and certainty in the workplace. The applicant is entitled to give notice to its employees of the approved agreement and to implement the agreement in accordance with the Fair Work Act 2009.

Orders