DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mightylagg Services Pty Ltd T/A Mightylagg Services Pty Ltd
(AG2019/1625)

MIGHTYLAGG SERVICES PTY LTD ON-SITE WORK ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 7 JUNE 2019

Application for approval of the Mightylagg Services Pty Ltd On-site Work Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Mightylagg Services Pty Ltd On-site Work Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mightylagg Services Pty Ltd T/A Mightylagg Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that clauses 22 and 24 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] I note that clause 13.2 of the Agreement makes provision for the employer, where an employee fails to give notice, to withhold moneys due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice not given. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[5] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 7 June 2019 and, in accordance with s.54, will operate from 14 June 2019. The nominal expiry date of the Agreement is 7 June 2022.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Mightylagg Services Pty Ltd trading as Mightylagg Services Pty Ltd, applied for the approval of the Mightylagg Services Pty Ltd On-site Work Enterprise Agreement 2019. The application was heard by the Fair Work Commission, which was required to determine whether the agreement met the requirements of the Fair Work Act 2009. The applicant argued that the agreement was fair and appropriate for the employees it covered, while no other party opposed the approval.

The legal issues before the Commission included whether the agreement was an enterprise agreement within the meaning of the Act, whether the agreement had been made in accordance with the procedural requirements set out in the Act, and whether the agreement was procedurally and substantively fair. The Commission examined the bargaining process, the content of the agreement, and the fairness of the terms and conditions provided for in the agreement.

The Commission found that the agreement was an enterprise agreement as it was made between an employer and employees, and it covered matters that could be dealt with in an enterprise agreement. The Commission also found that the agreement was made in accordance with the procedural requirements of the Act, as the applicant had engaged in genuine bargaining with the employees. The Commission examined the fairness of the agreement, considering factors such as the nature of the work, the bargaining power of the parties, and the terms and conditions provided for in the agreement. The Commission concluded that the agreement was procedurally and substantively fair and approved the agreement.

The Fair Work Commission approved the Mightylagg Services Pty Ltd On-site Work Enterprise Agreement 2019, finding that it met the requirements of the Fair Work Act 2009. The Commission found that the agreement was an enterprise agreement that had been made in accordance with the procedural requirements of the Act and was procedurally and substantively fair. The approval of the agreement ensures that the employees covered by the agreement have access to fair and appropriate terms and conditions of employment.

Mightylagg Services Pty Ltd T/A Mightylagg 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