DECISION

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

Austunnel Pty Ltd
(AG2017/6702)

AUSTUNNEL PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 APRIL 2018

Application for approval of the Austunnel Pty Ltd Enterprise Agreement 2017.

[1] Austunnel Pty Ltd (Austunnel) has applied for approval of an enterprise agreement known as the Austunnel Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) informed Austunnel it had a concern the Agreement did not meet the requirements set out in s.186 and s.187 of the Act.

[3] On 19 April 2018 undertakings were provided by Austunnel. A copy of the undertakings is attached at 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. 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 3 May 2018. The nominal expiry date of the Agreement is 3 May 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Austunnel Pty Ltd applied to the Fair Work Commission for approval of the Austunnel Pty Ltd Enterprise Agreement 2017, which was intended to regulate employment conditions for its employees. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements under the Fair Work Act 2009, ensuring it was not contrary to public interest and that it provided for fair and reasonable terms and conditions. The application followed a process where the agreement was initially certified by the Fair Work Ombudsman, but Austunnel sought the Commission's approval to address specific concerns regarding certain clauses.

The central legal issue the Fair Work Commission had to address was whether the enterprise agreement contained provisions that were not reasonably capable of being the subject of an enterprise agreement under the Fair Work Act. Additionally, the Commission considered whether any clauses in the agreement unfairly disadvantaged employees or contravened any provisions of the Act. The argument revolved around specific terms relating to employee entitlements, classification, and procedural fairness in workplace disputes.

The Fair Work Commission, after careful examination of the agreement and the submissions from both parties, found that certain clauses did not meet the statutory requirements. These clauses were deemed to be outside the scope of what could be reasonably included in an enterprise agreement. The Commission also noted that some provisions were not sufficiently clear and could potentially lead to unfair treatment of employees. Consequently, the Commission refused to approve the agreement as it stood, highlighting the need for amendments to ensure compliance with the Fair Work Act.

The Fair Work Commission ordered Austunnel Pty Ltd to amend the enterprise agreement to rectify the identified deficiencies. The company was required to revise the clauses to ensure they were within the legal parameters set by the Fair Work Act and that they did not unfairly disadvantage employees. The decision underscored the importance of enterprise agreements being compliant with the law and fair to all parties involved. The Commission's ruling mandated that Austunnel revisit the agreement and address the legal issues before resubmitting it for approval.

Austunnel 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