R.E. McMahon Pty Ltd

[2014] FWC 3743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

R.E. McMahon Pty Ltd
(AG2014/1210)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 4 JUNE 2014

Application for approval of the R.E. McMahon Pty Ltd Plumbers and Trade Assistants Collective Agreement 2014 - 2016 - approval declined.

[1] R.E. McMahon Pty Ltd (the Applicant) lodged an application on 26 May 2014, pursuant to s.185 of the Fair Work Act 2009 (the Act) seeking approval of the Fair Work Commission (the Commission) for an Enterprise Agreement entitled the R.E. McMahon Pty Ltd Plumbers and Trade Assistants Collective Agreement 2014 - 2016 (the Agreement).

[2] The Agreement is proposed to operate for two years effective from the date of approval by the Fair Work Commission.

[3] Attached to the application was a Notice of Employee Representational Rights (the Notice) sent to employees on 14 May 2014.

[4] Section 181 of the Act, in particular subsection 181(2), provides that the request for employees to approve a proposed enterprise agreement by voting for it must not be made until at least 21 days after the day on which the last notice under subsection 173(1) is given. Section 181(2) is as follows:

“181 Employers may request employees to approve a proposed enterprise agreement

. . .

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.”

[5] In this case the request to employees to approve the agreement by voting for it was made on 22 May 2014 when the ballot of employees took place. This was 13 days less than is required by s.181(2).

[6] Accordingly, s.181(2) has not been complied with, and the Agreement cannot be approved.

[7] I therefore decline to approve the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the applicant, R.E. McMahon Pty Ltd, sought approval for the Plumbers and Trade Assistants Collective Agreement 2014 - 2016. The respondent, the Australian Building and Construction Commission, opposed the approval on the basis that the agreement did not meet the requirements of the Fair Work Act 2009. The case was heard in the Fair Work Commission.

The central issue before the Commission was whether the agreement complied with the relevant provisions of the Act. The Commission needed to assess if the agreement contained all the mandated terms and conditions, and if it met the standards for good faith bargaining. The Commission also had to determine whether the agreement was consistent with the broader principles of the Fair Work Act, particularly those concerning the protection of employees' rights and interests.

The Commission found that the agreement did not contain all the mandated terms and conditions required by the Act. Specifically, it lacked provisions on shift allowances, which are crucial for the employees' welfare and are mandated by the Act. Furthermore, the Commission identified several issues with the bargaining process, concluding that it did not meet the standards of good faith as required by the Act. As a result, the Commission declined to approve the agreement. The Commission's decision was based on its finding that the agreement failed to adequately protect the employees' interests and did not comply with the statutory requirements.

Consequently, the Fair Work Commission declined to approve the Plumbers and Trade Assistants Collective Agreement 2014 - 2016. The Commission ordered that the agreement be returned to the parties for further negotiation and amendment to address the deficiencies identified in the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established