MF Structures Pty Ltd

[2023] FWCA 2595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MF Structures Pty Ltd

(AG2023/2542)

MF STRUCTURES PTY LTD ENTERPRISE AGREEMENT 2023 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 18 AUGUST 2023

Application for approval of the MF Structures Pty Ltd Enterprise Agreement 2023 - 2027

An application has been made for approval of an enterprise agreement known as the MF Structures Pty Ltd Enterprise Agreement 2023 - 2027 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MF Structures Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 4 April 2023 and the Agreement was made on 21 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 18 August 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

MF Structures Pty Ltd recently applied to the Fair Work Commission for approval of its proposed enterprise agreement, titled the MF Structures Pty Ltd Enterprise Agreement 2023-2027. The applicant, MF Structures, is an engineering company with employees covered under the Engineering Construction Industry Award 2010. The applicant sought to enter into an enterprise agreement with its employees to regulate their conditions of employment. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), representing the employees.

The primary legal issue the Commission had to address was whether the proposed agreement complied with the requirements of section 231 of the Fair Work Act 2009. This section mandates that an enterprise agreement must not contain terms that are less favourable than the applicable award or registered agreement and must meet certain procedural requirements. The Commission also had to consider whether the agreement provided for genuine bargaining, as required by section 173 of the Act.

The Commission found that the proposed agreement did not contain any terms that were less favourable than the applicable award, and it met the procedural requirements for an enterprise agreement. The Commission also concluded that the agreement provided for genuine bargaining, as the parties had engaged in a meaningful negotiation process. The Commission approved the proposed agreement, noting that it would provide better conditions for employees than the applicable award and would help to promote industrial harmony.

The Fair Work Commission has approved the proposed enterprise agreement, which will now be binding on the employees and the employer. The agreement provides for a range of conditions, including pay rates, leave entitlements, and dispute resolution mechanisms. The Commission's decision ensures that the employees will receive better conditions than those provided for in the applicable award, and it provides a framework for the parties to resolve any future disputes that may arise.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established