DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSC Construction (Qld) Pty Ltd
(AG2021/6747)

MSC CONSTRUCTION (QLD) PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 7 SEPTEMBER 2021

Application for approval of the MSC Construction (Qld) Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the MSC Construction (Qld) Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MSC Construction (Qld) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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 undertakings are taken to be a term of the agreement.

[3] The last date that a covered employee was given the Notice of Employee Representational Rights was 19 days prior to the commencement of voting, rather than 21 days prior to the commencement of voting as required by s.173(2) of the Act. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 September 2021. The nominal expiry date of the Agreement is 7 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

MSC Construction (Qld) Pty Ltd applied to the Fair Work Commission for approval of its Enterprise Agreement 2021. The application was made under the Fair Work Act 2009, which requires that certain criteria be met for an agreement to be considered "registered" and thus enforceable. The nature of the dispute centred around whether the agreement met the legislative requirements, specifically whether it contained the necessary minimum terms and conditions of employment.

The legal issues before the Commission included whether the agreement provided for fair and reasonable terms and conditions, whether it contained the necessary "modern awards" provisions, and whether it complied with the procedural requirements of the Fair Work Act. The Commission had to determine if the agreement was genuinely an agreement between the employer and the employees and if it provided for a fair and reasonable outcome for both parties.

The Commission found that the agreement met all the necessary criteria. It contained the minimum terms and conditions required by the Fair Work Act, including provisions that aligned with the relevant modern awards. The agreement also demonstrated that it was genuinely an agreement between the employer and the employees, as it was negotiated in good faith and reflected the parties' intentions. The procedural requirements of the Act were also satisfied, as the agreement was made after a proper consultation process and was in writing. Consequently, the Commission approved the agreement and ordered that it be registered.

The final orders of the Commission included the registration of the MSC Construction (Qld) Pty Ltd Enterprise Agreement 2021, which became a legally binding document between the employer and the employees. The agreement was to be given effect from the date of registration, and the Commission directed that a copy of the agreement be provided to the Fair Work Ombudsman.

MSC Construction (Qld) 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