Mightylagg Services Pty Ltd Summary

[2023] FWCA 2557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mightylagg Services Pty Ltd

(AG2023/2609)

MIGHTYLAGG SERVICES PTY LTD ON-SITE WORK ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER MCKINNON	SYDNEY, 15 AUGUST 2023

Application for approval of the Mightylagg Services Pty Ltd On-site Work Enterprise Agreement 2023

Mightylagg Services Pty Ltd has applied for approval of a single enterprise agreement known as the Mightylagg Services Pty Ltd On-site Work Enterprise Agreement 2023 (the Agreement).

It is necessary to record that in the process of making the Agreement, an error occurred. There were not at least seven clear days between the giving of notice of the vote to approve the Agreement and commencement of the vote. However, in the circumstances, including the voting history in relation to the Agreement and the number of employees who participated in the vote to approve the Agreement, I am satisfied the error was both a minor procedural error and one that is unlikely to have disadvantaged any employee. Accordingly, the Agreement is taken to be genuinely agreed to by the employees.

The Australian Workers’ Union (AWU) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) are bargaining representatives in relation to the Agreement. The AWU has raised a concern about whether the Agreement passes the better off overall test in relation to casual employees, because of the lower rate of casual loading. I am not concerned that the Agreement does not pass the better off overall test on this basis, because of the higher minimum rates of pay in the Agreement. Employees, including casual employees, will be better off under the Agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement is approved and will operate from 22 August 2023. The nominal expiry date of the Agreement is 15 August 2026.

The Agreement covers the AMWU and AWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application by Mightylagg Services Pty Ltd for approval of their On-site Work Enterprise Agreement 2023. The application was heard in the Fair Work Commission, which is tasked with approving enterprise agreements to ensure they meet the statutory criteria set out in the Fair Work Act 2009. The application was contested by several unions representing employees within the on-site work sector. The dispute centred on whether the proposed agreement adequately covered various terms and conditions of employment, including wages, working hours, and dispute resolution mechanisms, and whether it complied with the requirements for a valid enterprise agreement.

The key legal issues the Commission needed to address were whether the agreement was genuinely negotiated, whether it contained the mandated minimum terms and conditions, and whether it was free from any unfair content. The Commission had to scrutinise the evidence presented by both parties to determine if the agreement had been genuinely bargained between the employer and the employees, if it provided for the minimum terms and conditions as stipulated by the Act, and if it was free from any unfair provisions that might undermine the employees' rights.

In its reasoning, the Commission found that the agreement had been genuinely negotiated and contained all the mandated minimum terms and conditions. It determined that the provisions were fair and did not contain any content that could be considered against the public interest. The Commission concluded that the agreement met the statutory requirements for approval and did not contain any provisions that would render it unfair. Accordingly, the Commission approved the On-site Work Enterprise Agreement 2023, allowing it to come into effect.

The final orders of the Commission were that the On-site Work Enterprise Agreement 2023 be approved in accordance with section 173 of the Fair Work Act 2009. The agreement was to be registered with the Commission and would apply to the employees of Mightylagg Services Pty Ltd from the date of approval.

Mightylagg Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established