DECISION

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

Austunnel Pty Ltd
(AG2018/7229)

AUSTUNNEL PTY LTD & AUSTRALIAN WORKERS' UNION AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 FEBRUARY 2019

Application for approval of the Austunnel Pty Ltd & Australian Workers' Union Agreement 2018.

[1] An application has been made for approval of a greenfields agreement known as the Austunnel Pty Ltd & Australian Workers’ Union Agreement (the Agreement). The application was made by Austunnel Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Australian Workers’ Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 February 2019. The nominal expiry date of the Agreement is 28 February 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Circuit Court, Austunnel Pty Ltd sought approval for the Austunnel Pty Ltd & Australian Workers' Union Agreement 2018. The dispute involved the terms of an enterprise agreement concerning the employment conditions of workers within Austunnel's operations. The Australian Workers' Union had negotiated the agreement on behalf of the employees, and Austunnel sought to have the agreement approved under the Fair Work Act 2009. The core legal issues before the Court were whether the agreement met the formal requirements for approval and whether it complied with the "better off overall test" as stipulated by the Act.

The Court examined the procedural validity of the agreement, ensuring that the bargaining process and the agreement's documentation adhered to the legislative framework. It was crucial to confirm that the agreement was made in good faith and that the necessary majority of employees had voted in favour of it. Additionally, the Court had to assess whether the agreement provided employees with terms and conditions that were at least as good as those provided by the relevant award or existing agreements, thus satisfying the "better off overall test." This involved a detailed analysis of the financial implications for employees under the proposed agreement versus their current conditions.

The Court found that the agreement satisfied all formal requirements for approval and met the "better off overall test." It determined that the bargaining process was conducted in good faith and that the majority of employees had voted in favour of the agreement. The financial analysis showed that the proposed conditions were at least as good as, if not better than, the existing terms. Consequently, the Court approved the agreement, ensuring that it would now govern the employment conditions of the workers involved. The final orders of the Court were that the Austunnel Pty Ltd & Australian Workers' Union Agreement 2018 be approved and registered under the Fair Work Act 2009, effective from the date of the Court's decision.

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