1
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
McMah Pty Ltd T/A Men at Work Labour Hire
(AG2014/7537)
MCMAH PTY LTD ENTERPRISE AGREEMENT 2014 - 2018
Miscellaneous
COMMISSIONER BULL SYDNEY, 12 JANUARY 2015
Application for approval of the McMah Pty Ltd Enterprise Agreement 2014-2018.
First Application
[1] On 25 July 2014, an application was made by McMah Pty Ltd t/a Men at Work
Labour Hire (the applicant) for the approval of an enterprise agreement. The application was
filed in the Fair Work Commission’s (FWC) Brisbane registry. The applicant is in the labour
hire industry and identified a number of similar agreements approved by the Commission.
[2] The Agreement titled the McMah Pty Ltd Enterprise Agreement 2014 - 2018 (the
Agreement) had a nominal expiry date of four years from date of operation. The Form F17
Employer’s Statutory Declaration completed by a Mr Neil McIntyre Managing Director of
the applicant indicated at question 2.10 that 118 employees would be covered by the
Agreement of whom 38 out of 45 employees who cast a valid vote, voted to approve the
Agreement. The Applicant at question 4.3 when asked to provide details on the vote states
that 119 casual employees were involved in the vote. The Agreement applied to all of the
applicant’s on-hire employees employed in “all of its operations within Australia”.1
[3] Employees were not represented by any union or employee bargaining representatives.
[4] On 28 August 2013, the Commission conducted a telephone conference with the
Applicant and their representative for the Commission to understand how the Agreement
could satisfy the various statutory approval requirements. At the end of the telephone
conference the applicant agreed to further clarify some unresolved issues. On 1 September
2014, further information was received together with a notice of discontinuance.
1 Clause 4 of Agreement.
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DECISION
E AUSTRALIA FairWork Commission
[2015] FWCA 253
Second Application
[5] On 16 September 2014, a second application, the subject of this approval application
was filed in the Brisbane registry. The Agreement did not appear in substance to be any
different from that previously filed and withdrawn, including some previously identified
typographical errors.2 On this occasion the applicant states that 85 employees will be covered
by the Agreement, with 43 employees voting on the Agreement and 38 voting in favour of the
Agreement. At question 4.3 of the employer’s statutory declaration it is stated by Mr
McIntyre that 87 casual employees were involved in the vote.
[6] A telephone conference was conducted by the Commission on 7 October 2014 with
the Applicant and their representative and upon conclusion the Applicant undertook to
provide the Commission with additional information which was provided. On December 10
2014, a further telephone conference was held3 with the applicant’s representative, the
applicant was unable to participate.
[7] The Agreement is unorthodox in a number of ways. The Agreement does not contain
any specified classifications or wage rates but rather refers to other industrial instruments.
This is demonstrated at clause 5 - Scope and Intent which states:
“a. This Agreement incorporates all relevant Modern Awards4 (and any other prior relevant
Award) that would otherwise apply to Employees “Relevant Award”. The Relevant Award
(and any other prior RRelevant (sic) Award) is to be read and applied in conjunction with the
terms and conditions in this Agreement. To the extent that there is any inconsistency, the
Agreement shall prevail.
b. In the event that no relevant Modern Award (or any other prior Relevant Award) exists to
cover a particular assignment, the terms and conditions of employment will be governed by
this Agreement, together with the relevant legislation (inclusive of the National Employment
Standards) that would otherwise apply.
c. The rates of pay, terms and conditions in this Agreement represent the minimum that will be
paid to Employees. The Company will assess the market conditions and may pay Employees a
higher rate of pay or altered terms5, in accordance with clause 16 b.,where it is able to
negotiate this with the client. Given the nature of on-hire work, any increases above the
minimum wages may vary from assignment and will be entirely at the discretion of the
Company.”
(My underline)
[8] Under the heading Additional Claims at clause 8, employees are proscribed during
the term of the Agreement from pursuing any further claims about any matter which pertains
to the employment relationship.
2 For example see reference to “conversation rights” as opposed to “conversion rights” in subclause 7a, and reference to
“RRelevant” in clause 5a. of both Agreements. A further copy of the Agreement was sent to the Commission on 10 October
2014 stating that the typographical errors had been removed.
3 The Applicant’s representative was not available at an earlier proposed date.
4 s.57 of the Act provides that a modern award does not apply to an employee where an enterprise agreement operates.
5 The first Agreement used the words “or more attractive terms”.
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[9] It is apparent that employees engaged in making the Agreement6 could not have
included at the time of voting, employees who were otherwise covered by all 122 modern
awards of the Commission, despite the Agreement incorporating all modern awards.
[10] Section 186 of the Fair Work Act 2009 (the Act) provides when the Commission must
approve an enterprise agreement. The relevant parts of s.186 are in the following terms:
“When FWC must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185,
FWC must approve the agreement under this section if the requirements set out in this section
and section 187 are met.
Note: FWC may approve an enterprise agreement under this section with undertakings (see
section 190).
Requirements relating to the safety net etc.
...
(2)(d) the agreement passes the better off overall test.
Requirement that the group of employees covered by the agreement is fairly chosen
(3) FWC must be satisfied that the group of employees covered by the agreement was fairly
chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers
covered by the agreement, FWC must, in deciding whether the group of employees covered
was fairly chosen, take into account whether the group is geographically, operationally or
organisationally distinct...”
[11] The employer’s statutory declaration states that the Agreement does not cover all of
the employees of the employer (other than senior executives), but covers all on-hire
employees who perform work that is operationally distinct from all other areas of the
business.
[12] It is self evident that the 85 employees eligible to vote on the Agreement cannot be
engaged in each industry of the 122 modern awards covered by the Agreement.
[13] As a stark example of this the Agreement covers employees engaged under the
Medical Practitioners Award 2010 which contains the classifications of Senior Specialist and
Deputy Director of Medical Services further under the Legal Services Award 2010, is the
classification of Law Graduate. The applicant’s written submissions of 10 October 2014
indicate that at the time of voting there were no employees who would have been covered by
the Medical Practitioners Award 2010 or the Legal Services Award 2010. The Agreement
was voted on by exclusively casual employees in what appears to be predominately blue
collar occupations.
6 85 employees were eligible to vote on the Agreement.
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[14] Further at clause 15 - Disputes at Work, it provides that where a matter is referred to
a third party (which includes the FWC) for arbitration, any settlement decision must be
consistent with the Building and Construction Industry Code. Although not a statutory barrier
in the Agreement approval process it is unclear why reference to the Building and
Construction Industry Code would be required for a dispute concerning medical practitioners
or any employee covered by the 122 modern awards not employed in the building and
construction industry. This was never satisfactorily explained at the telephone conferences.
[15] Having employees vote on an Agreement covering classifications they themselves are
not employed in does not, on the relevant authorities, result in a failure of the requirement
under s.186(3) of the Act for the employees covered by the Agreement to be “fairly chosen”.
[16] In the 2012 Full Bench decision of Cimeco Pty Ltd v Construction, Forestry, Mining
and Energy Union and others7 it was held:
“[38] ... an agreement can only be made by a vote of the employees who will be covered by it.
A ‘much more represented group of existing employees’ cannot vote to make a geographically
distinct agreement unless at the time of the vote they will be covered by that agreement.”
[17] In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union8 Siopis J
of the Federal Court stated:
“[34] In my view, there is nothing in the language of s 186(3) and s 186(3A) of the Fair Work
Act which conditions the exercise by Fair Work Australia of the power under s 186(3) to
approve an agreement, upon Fair Work Australia being satisfied as to the number of
employees who will, or may, during the term of the agreement, be covered by the agreement.
[37] Further, in my view, the words “was fairly chosen” in s 186(3) are not to be construed as
“was chosen in a manner which would not undermine collective bargaining”. ...
[40] Plainly, the Full Bench was of the view that there was something wrong with three
employees being able to make an agreement which covered work classifications other than
their own. However, if there is a lacuna in the Fair Work Act, on which I express no view,
then the remedy would appear to lie in legislative amendment.”
[18] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland
Divisional Branch; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union" known as the Australian Manufacturing Workers' Union (AMWU)-Queensland
Branch v Main People Pty Ltd9 the Full Bench stated:
“[17] FWC must be satisfied that group covered by the agreement was fairly chosen. In
determining that matter in a situation where not all employees of the employer are covered by
the agreement, FWC must take into account whether the group is geographically, operationally
or organisationally distinct.
[18] It is in the nature of the scheme established by the FW Act that (a majority of) the
employees employed at the time an enterprise agreement is made can agree to terms and
conditions of employment that will then bind future employees employed under the terms of
7 [2012] FWAFB 2206.
8 [2014] FCA 286.
9 [2014] FWCFB 8429.
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that agreement. Nor is there anything in the FW Act to prevent employees voting to approve
an agreement that will affect employees in classifications or geographic locations other than
their own (unless a relevant scope order has been made).”
[19] The Applicant pointed to a number of enterprise agreements approved by the
Commission in circumstances where a limited group of employees had voted on agreements
with wide ranging coverage outside the industries and occupations of those involved in the
voting process.10
[20] On the above authorities there is no reason to conclude that the group of employees
covered by the Agreement was not fairly chosen on the basis of employees voting for an
Agreement which covers classifications (as opposed to industries) they are not engaged in. All
employees eligible to vote at the time were provided with the opportunity to do so.
[21] The employees covered by the Agreement are organisationally distinct in that they are
the applicant’s on-hire employees.
Genuinely Agreed
[22] Section 186(2) of the Act requires that an enterprise agreement must be “genuinely
agreed” to by employees covered by the agreement. (Note 1 in s186(2) states that reference
should be made to s.188 for the meaning of “genuinely agreed”).
[23] Section 188 sets out a “non exhaustive”11 list of the matters for the Commission to
consider when determining whether an enterprise agreement has been genuinely agreed to by
employees covered by the agreement. Sub section 188(c) refers to there being “no other
reasonable grounds for believing that the agreement has not been genuinely agreed to by the
employees.”
[24] The Explanatory Memorandum to the Fair Work Bill 2008 (EM) states at Item 824:
“... Note that where an agreement covers a large number of classifications of employees in
which no employees are actually engaged there may be a question as to whether the agreement
has been genuinely agreed – see clause 188.”
[25] This is a consideration only, it is not decisive and is to be given due weight having
regard for all the relevant circumstances.
[26] An enterprise agreement imposes obligations on employers and employees covered by
the agreement.12 An enterprise agreement applies to the employees described in the coverage
clause of the agreement, irrespective of whether they voted in the ballot for the agreement,
whether they supported the making of the agreement, or whether they were employed at the
time the agreement was made.
[27] In response to a Commission query the applicant has advised that employees in 15
industries were involved in the vote for the Agreement, since the vote was taken. Employees
10 See paragraph 17 of Applicant’s written submissions dated 10 October 2014.
11 See Item 793 of the Fair Work Bill 2008 Explanatory Memorandum.
12 s.51 of the Act.
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in another eight industries have been engaged. The modern award coverage of these “areas” is
not specified. What is clear is that the employees voting for the Agreement were employed in
industries that do not cover the full spectrum of the 122 modern awards the Agreement
incorporates. In my view this in itself is sufficient to provide “reasonable grounds for
believing that the agreement has not been genuinely agreed to ...”
[28] None of the decisions mentioned above in relation to “fairly chosen” address or refer
to the question of “genuinely agreed” or the context of Item 824 in the EM or traverse
situations where whole industries have been covered by an agreement where no employee in
any classification of a particular industry was engaged at the time of making the agreement.
[29] In the majority decision of Construction Forestry Mining and Energy Union v
Australian Industrial Relations Commission13 Wilcox and Madgwick JJ stated at 126 of the
decision in respect of “genuinely made”:14
“Section 170LT(6) requires that a "valid majority of persons employed at the time whose
employment would be subject to the agreement must have genuinely made the agreement".
This plainly betokens a concern with the authenticity and, as it were, the moral authority of the
agreement. It is perfectly understandable - indeed, one might reasonably think, plainly
necessary - this be so. ...
There can hardly be fair agreement-making between employer and employees about wages
and employment conditions in a workplace (a mine is a good example) before both sets of
parties have actual experience of the work and its place of performance.”
(My underline)
[30] As discussed above, the Agreement incorporates industries that no voting employee
was engaged in at the time. Adopting the principle of “the moral authority of the agreement”
it is hard to see where the moral authority of the Agreement exists, for example, in respect of
medical practitioners or law graduates.
[31] It is understandable and unremarkable that employees voting on an agreement will not
always cover the full range of classifications in a modern award that the agreement is to either
supplant or as in this Agreement, incorporate, subject to the terms of the Agreement. It is
another matter for employees to make an enterprise agreement covering industries where no
employees in any classification are engaged when the agreement is made and may possibly
never be engaged. The Act provides the ability for employers to enter into Greenfield
agreements in situations that relate to new enterprises that employers are establishing or
propose to establish but have not yet employed any persons necessary for the conduct of that
enterprise who will be covered by the agreement.15
[32] A further example of the difficulty is found at clause Clause 12 of the Agreement
Hours of Work. This clause provides that where the relevant award stipulates the days on
which ordinary hours can be worked and/or the span of ordinary hours and the relevant award
allows for a variation by agreement between the employer and employee, it is taken that
agreement has been reached to the extent permitted by the relevant award. It is difficult to
13 (1999) 93 FCR 317 at 357 see also Grocon Pty Ltd Enterprise Agreement (Victoria) 2003) VP Ross 127 IR 13 at 45 these
decisions are given as examples in the EM at Item 797.
14 The current legislation uses the term “genuinely agreed”
15 S.172(3)
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accept how agreement could be reached on the span of hours or days worked where no
employees in a particular industry have voted on the Agreement.
[33] Following concerns expressed by the Commission, the applicant stated that it was
prepared to provide an undertaking that the Agreement only incorporate 93 of the 122 modern
awards. Section 190 of the Act allows the Commission to accept an undertaking from an
employer when the Commission has a concern that the agreement does not meet the
requirements set out in sections 186 and 187. I was not satisfied that this undertaking would
satisfy the “genuinely agreed” requirement. Following a further request from the Commission
the employer has provided an undertaking that further reduces the Agreement coverage, for
example the Medical Practitioners and the Legal Services Awards are no longer part of the
Agreement coverage. The Agreement coverage is reflected in Appendix 1.
[34] Based on the further undertaking to reduce the Agreement’s coverage to industries of
the type and nature the employees covered by the Agreement are engaged in, I am satisfied
that the Agreement has been genuinely agreed to by the employees.
Better off overall test
[35] Section 186 of the Act provides that the Commission must approve an enterprise
agreement if the requirements of the ss. 186 and 187 are met. Section 186(2)(d) provides that
the Commission must be satisfied the enterprise agreement passes the better off overall test
(BOOT). The nature of the BOOT is set out in s.193 of the Act. Section 193 provides that:
“When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off
overall test under this section if FWC is satisfied, as at the test time, that each award covered
employee, and each prospective award covered employee, for the agreement would be better
off overall if the agreement applied to the employee than if the relevant modern award applied
to the employee.
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award)
that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to
perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a person who,
if he or she were an employee at the test time of an employer covered by the agreement:
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(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would
perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the agreement by FWC was
made under section 185.
FWA may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off
overall test, if a class of employees to which a particular employee belongs would be better off
if the agreement applied to that class than if the relevant modern award applied to that class,
FWA is entitled to assume, in the absence of evidence to the contrary, that the employee
would be better off overall if the agreement applied to the employee.”
[36] In Armacell Australia Pty and Others16 a Full Bench of Fair Work Australia said:
“The BOOT, as the name implies, requires an overall assessment to be made. This requires
identification of terms which are more beneficial for an employee, terms which are less
beneficial and an overall assessment of whether an employee would be better off under the
agreement.”
[37] The role of the Commission in approving agreements was considered in Re
McDonald’s Australia Enterprise Agreement 200917. The Full Bench determined that the role
of the Commission includes facilitating enterprise agreements:
“[13] The appellants emphasised the facilitative aspects of these objectives. We agree that
these objectives place the primary role for making enterprise agreements on the parties to
those agreements and their representatives and that the role of Fair Work Australia (FWA)
includes facilitating the making of enterprise agreements. In general we believe that the
requirements for approval should be considered in a practical, non-technical manner and that
reasonable efforts should be made to clarify matters with the parties and consider undertakings
to clarify or remedy concerns to the extent that these may be available under s.190 of the
Act.”18
[38] I have applied this approach in the determination of this application. The applicant is a
labour hire business and engages employees to suit the needs of its clients, which no doubt
presents particular employment challenges. The applicant submitted that in its labour hire
business it does not supply labour to any one industry or employer but supplies labour to the
local businesses in the Sunshine Coast Queensland and further afield. The Agreement would
provide it with the flexibility to “fill any order that a client may give it for the hiring of
labour”.
16 [2010] FWAFB 9985 at [41].
17 [2010] FWAFB 4602.
18 Re McDonald’s Australia Enterprise Agreement 2009 [2010] FWAFB 4602 at [13].
[2015] FWCA 253
[39] The relevant awards for the purposes of assessing whether the Agreement passes the
BOOT are the modern awards now referred to in the applicant’s undertaking. While the task
of comparing the terms and conditions of the Agreement with these modern awards would be
monumental, this is avoided for the most part as the Agreement incorporates the modern
awards except where there is any inconsistency, in which case the Agreement applies.19
More beneficial terms and conditions
[40] In respect of terms or conditions of employment that are more beneficial under the
Agreement that are not provided for under the reference instruments, the Applicant refers to
sub clause 16 b. Market Arrangements which is in the following terms:
“Where an employee is placed on an assignment where it is necessary for the Company to pay
the Employee higher wages than those that are contained within this Agreement, this
arrangement will be received by the Employee in satisfaction of any and/all entitlements,
terms conditions, penalties and allowances which might otherwise apply to the Employee
under this Agreement. This may include flat or rolled up hourly rates provided that the total
payment top an Employee will not be less than an Employee would have received under this
Agreement.”
[41] This sub clause is to be read in conjunction with sub clause 5 c. of the Agreement:
The rates of pay, terms and conditions in this agreement represent the minimum that will be
paid to employees. The Company will assess the market conditions and may pay Employees a
higher rate of pay or altered terms20 in accordance with clause 16 b., where it is able to
negotiate this with the client. Given the nature of on-hire work, any increases above the
minimums may vary from assignment and will be entirely at the discretion of the Company.”
(My underline)
[42] As can been seen from both sub clauses there is no guaranteed increase over and
above the relevant modern awards, only a discretionary market arrangement “where it is
necessary for the Company to pay the Employee higher wages than those that are contained
within this Agreement.” As such, if the applicant does not deem it necessary to pay higher
wages than the modern awards, only the award wage will be paid.
[43] The Applicant also points to clause 7 - Casual Employment as being a more
beneficial condition than the modern awards, which states:
“Where a Relevant Award, contains Casual conversion provisions that require conversion of
Casual employees to Permanent Full or Part-time Employees, regardless of the circumstances,
for the purposes of this Agreement those provisions will have no effect on Employees.
In order to compensate employees for the loss of casual conversation (sic) rights, an additional
1% Casual Loading will be paid at such time as the Casual conversion (if any) would have
otherwise applied but for this Agreement.”
19 Clause 5 of the Agreement.
20 The first Agreement used the words “or more attractive terms”.
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[44] The Agreements provides for all types of employment as it incorporates a number of
modern awards.2122 The casual conversion clause has no application to other types of
employment. As the clause states, the payment of a 1% loading is in compensation for the loss
of the casual conversion to full-time or part-time status where the modern award provides
such an entitlement. The difficulty with the casual conversion clause in the Agreement is that
it removes the election that employees have to convert to permanent employment after 12
months.23 While a 1% wage increase may be adequate to compensate for the loss of a
permanent conversion and the benefits permanency brings an employee, no evidence was
presented to demonstrate this would make employees “better off”.
[45] Following the telephone conference conducted by the Commission and at the request
of the Commission, the applicant forwarded five employee statements from casual employees
all of which stated that they would prefer to remain as casual employees. From the statements
received they did not indicate whether any of the employees had actually accrued a right to
elect whether to be made permanent under a particular modern award, hence whether they
would be entitled to the additional 1% loading under the Agreement.
[46] Section 180(5) of the Act requires the employer to take all reasonable steps to ensure
that the terms of the Agreement and the effect of the terms are explained to employees. The
document provided by the applicant to employees explaining the Agreement states that the
additional 1% is provided “as we cannot always guarantee permanent employment for you.”
[47] It is also submitted that the Agreement will allow for casuals to be engaged under
awards that do not contain casual provisions.
Less Beneficial Terms and Conditions
[48] The applicant states that the Agreement’s only less beneficial term is contained in
clause 21 - Termination of Employment where casual employees at sub clause 21 b. are
required to provide a minimum of four hours’ notice to terminate their employment contract.
[49] The applicant has not referred to sub clause 21 d. of the Agreement which purports to
allow the Company to retain in ordinary wages an amount equivalent to the required period of
notice not provided by the employee either under the National Employment Standards or the
Agreement.
[50] The Agreement contains a number of provisions which place lawful obligations on
employees that are not found in the modern awards. These clauses include:
9 - Lawful Directions
14 - Safety Matters
24 - Company Policy and Procedures
25 - Social Networking Media
26 - Confidential Information
27 - Conflict of Interest
21 See reference to Annual Leave and Leave Loading at clauses 18 and 23 that have application to permanent or part-time
employees.
22 The applicant’s Explanation document to employees states “As you may be aware, most On-Hire Employees are casual.”
23 See clause 14.8 of the Building and Construction General On-Site Award 2010 and clause 14.4 of the Manufacturing and
Associated Industries and Occupations Award 2010.
[2015] FWCA 253
[51] The difficulty with satisfying the BOOT is that other than a potential discretionary
wage increase for casuals, in certain circumstances over the award minimum and a
compensatory 1% wage increase where a right to elect to become a permanent employee
arises, the Agreement provides no other terms or conditions more favourable that the modern
awards. The statutory test is for all employees to be better off overall, simply being
guaranteed the award minimums does not advance an employee’s terms and conditions.
Undertakings
[52] Where the Commission has a concern that an agreement does not meet the
requirements set out in s.186 and s.187 of the Act including that the agreement does not pass
the BOOT, it has been held that s.190 requires the Commission provide the employer an
opportunity to provide a written undertaking aimed at meeting those concerns see Re BUPA
Care Services.24
[53] The applicant stated that it would be prepared to provide an undertaking that casual
employees working under an award that does not contain a casual conversion provision would
be paid an additional 1% wage increase after 12 months service in that award role.25 That
undertaking has now been provided.
[54] While I accept that casual employees under the Agreement are better off overall when
compared to the relevant modern awards, there is nothing in the Agreement that provides
employees (other than casuals) any terms or conditions which have been identified as superior
to the modern awards, while there are identified inferior terms and conditions.
[55] On this basis, I requested an undertaking from the employer that non casual employees
would be better off overall under the Agreement. Although it would appear that that the
employment of non casuals is not common practice the employer has provided an undertaking
the all permanent employees “will be paid at least an additional 5 cents per hour above the
relevant Award rate that might otherwise apply”. While 5 cents per hour would seem to be a
token increase it provides the relevant employees an increase above the award rate making
them better off overall. The undertaking is accepted.
[56] The undertakings are not so substantial that if asked to vote again the employees who
voted would not approve the Agreement. I am therefore satisfied that the undertakings do not
result in a substantial change to the Agreement as per s.190(3)(b) of the Act.
[57] These undertakings are taken to be a term of the Agreement. A copy of the
undertakings is attached at Annexure A.
[58] 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.
24 BUPA Care Services v P & A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie
Murwillumbah and others [2010] FWAFB 2762 at (49).
25 Paragraph 23 written submissions of 10 October 2014.
[2015] FWCA 253
[59] The Agreement is approved. In accordance with section 54(1), the Agreement will
operate from 19 January 2015. The nominal expiry date of the Agreement is four years from
the date of approval.
COMMISSIONER
OR HE
OF
MI AL
NO
[2015] FWCA 253
Annexure A
MEN (@ WORK
Commissioner Bull Fair Work Commission 23 December 2014
Dear Commissioner Bull, Re: AG2014/7537 Thankyou for your advice in relation to our application for Agreement Approval (AG2014/7537) the McMah Pty
Ltd Enterprise Agreement 2014. As discussed, we hereby give the following undertakings: McMah Pty Ltd undertakes: 1. To restrict the Awards that apply in accordance with clause 5 to those attached at Appendix 1.
2. That all permanent employee will be paid at least an additional 5 cents per hour above the relevant Award rate that might otherwise apply. 3. Where an Employee of the Employer works in a capacity that is covered by a Relevant Award and that work is not covered by the provisions of clause 7, then, after 12 months in that role, the Employer will pay an additional 1% casual loading to that Employee. Such additional payment will be subject to the the
18 Na which exists at that time; where there is no sufficient over-award/over-agreement payment, then an additional payment will be made to the Employee to ensure they are being paid in total, at least the equivalent of their award entitlements with an additional 1% casual loading. Yours faithfully,
Meil Mcintyre Managing Director McMah Pty Ltd -
... Witness Signature Date DEIRDRE DUFFY. Witness Name
[2015] FWCA 253
APPENDIX 1 Award Airline Operations-Ground Staff Award 2010 [MA000048] Aluminium Industry Award 2010 [MA000060] Amusement, Events and Recreation Award 2010 [MA000080]
Asphalt Industry Award 2010 [MA000054] Black Coal Mining Industry Award 2010 [MA000001] Book Industry Award 2010 [MA000078] Building and Construction General On-site Award 2010 [MA000020] Business Equipment Award 2010 [MA000021] Cement and Lime Award 2010 [MA000055]
Cemetery Industry Award 2010 [MA000070] Cleaning Services Award 2010 [MA000022] Clerks - Private Sector Award 2010 [MA000002] Concrete Products Award 2010 [MA000056] Contract Call Centres Award 2010 [MA000023] Cotton Ginning Award 2010 [MA000024] Dredging Ind 12010 IMA0000851
Educational Services (Schools) General Staff Award 2010 [MA000076] Electrical Power Industry Award 2010 [MA000088] Electrical, Electronic and Communications Contracting Award 2010 [MA000025] Fast Food Industry Award 2010 [MA000003] Fitness Industry Award 2010 [MA000094]
Food, Beverage and Tobacco Manufacturing Award 2010 [MA000073] Gardening and Landscaping Services Award 2010 [MA000101] Gas Industry Award 2010 [MA000061] General Retail Industry Award 2010 [MA000004] Graphic Arts, Printing and Publishing Award 2010 [MA000026] Higher Education Industry-General Staff-Award 2010 [MA000007] Horticulture Award 2010 [MA0000281
Hospitality Industry (General) Award 2010 [MA000009] Hydrocarbons Industry (Upstream) Award 2010 [MA000062] Joinery and Building Trades Award 2010 [MA000029] Local Government Industry Award 2010 [MA000112] Manufacturing and Associated Industries and Occupations Award 2010 [MA000010]
Meat Industry Award 2010 [ MA000059] Mining Industry Award 2010 [MA000011] Miscellaneous Award 2010 [MA000104] Mobile Crane Hiring Award 2010 [MA000032] Nursery Award 2010 [MA000033] Passenger Vehicle Transportation Award 2010 [MA000063] Pest Control Industry Award 2010 [MA0000971
[2015] FWCA 253
Printed by authority of the Commonwealth Government Printer
Price code G, AE412175 PR559947
Plumbing and Fire Sprinklers Award 2010 [MA000036] Quarrying Award 2010 [MA000037] Racing Clubs Events Award 2010 [MA000013] Racing Industry Ground Maintenance Award 2010 [MA000014] Registered and Licensed Clubs Award 2010 [MA000058] Restaurant Industry Award 2010 [MA000119]
Road Transport (Long Distance Operations) Award 2010 [MA000039] Road Transport and Distribution Award 2010 [MA000038] Seafood Processing Award 2010 [MA000068] Security Services Industry Award 2010 [MA000016] Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100] Storage Services and Wholesale Award 2010 [MA000084]
Surveying Award 2010 [MA000066] Telecommunications Services Award 2010 [MA000041] Timber Industry Award 2010 [MA000071] Travelling Shows Award 2010 [MA000102] Vehicle Manufacturing, Repair, Services and Retail Award 2010 [MA000089]
waste Management Award 2010 [MA000045] Water Industry Award 2010 [MA000113]
