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[2023] FWCA 65

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MOAG Pty Ltd

(AG2022/5280)

MOAG ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 9 JANUARY 2023

Application for approval of the MOAG Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the MOAG Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MOAG Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

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.

I do observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 14(d) – Withholding of NES entitlements
· Clause 14(e) – Withholding of NES entitlements.

However, noting clause 5(b) of the Agreement and the undertakings provided, I am satisfied the more beneficial entitlements of the NES 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 8 January 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of MOAG Pty Ltd, the Fair Work Commission considered an application for the approval of the MOAG Enterprise Agreement 2022. The application was brought forward by the employer, MOAG Pty Ltd, seeking the Fair Work Commission’s endorsement of the proposed agreement which outlines the terms and conditions of employment for the company's workers. The nature of the dispute centred on whether the agreement met the statutory requirements set out in the Fair Work Act 2009, particularly in relation to procedural fairness and the provision of necessary information to the employees.

The primary legal issues before the Commission involved the assessment of the agreement against the criteria for approval. These included whether the employer had provided all necessary information to the employees, whether the employees had an adequate opportunity to discuss and vote on the agreement, and whether the agreement was consistent with the national employment standards. Furthermore, the Commission had to consider if the agreement was fair and reasonable in all its aspects, taking into account the public interest and any other relevant considerations.

The Fair Work Commission meticulously reviewed the evidence and submissions provided by both parties. The Commission found that the employer had indeed complied with the procedural requirements, ensuring that employees were adequately informed and had the opportunity to discuss and vote on the agreement. The Commission was satisfied that the agreement was fair and reasonable, and met all statutory criteria for approval. Consequently, the Commission approved the MOAG Enterprise Agreement 2022, endorsing it as meeting the necessary legal standards.

MOAG Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established