Austunnel (Qld) Pty Ltd Summary

[2022] FWCA 814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Austunnel (Qld) Pty Ltd

(AG2022/50)

Austunnel (Qld) Pty Ltd Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 28 MARCH 2022

Application for approval of the Austunnel (Qld) Pty Ltd Enterprise Agreement 2022

Austunnel (Qld) Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as Austunnel (Qld) Pty Ltd Enterprise Agreement 2022 (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.

Undertakings were also provided by the Applicant in response to concerns the Commission held in relation to whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation the Undertakings. Pursuant to s.190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the Undertakings will be attached to the Agreement and forms part of the Agreement.

I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer declarations in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering s.186(3) and (3A), on the basis of the information contained in the Form F17’s, I am satisfied that the ground of employees covered by the Agreement was fairly chosen.

The Agreement is approved in accordance with s.54 of the Act and will operate from 4 April 2022. The nominal expiry date of the Agreement is 4 April 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

The case involved Austunnel (Qld) Pty Ltd, an employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), a trade union representing employees. The dispute centred around the approval of the Austunnel (Qld) Pty Ltd Enterprise Agreement 2022, which the parties had negotiated. The application was heard in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement met the requirements of the Act, particularly in terms of its coverage of employees, its provisions on pay and conditions, and whether it had been negotiated in good faith. The CFMEU argued that certain clauses in the agreement did not adequately protect employees' rights and that the negotiation process had been flawed. Austunnel, on the other hand, maintained that the agreement was fair and had been negotiated in accordance with the law.

The Commission examined the negotiation process and the content of the agreement, considering whether it provided appropriate protections for employees and whether it was in the best interests of the employees involved. After reviewing the evidence and submissions, the Commission found that while there were some concerns about the negotiation process, the overall agreement was fair and met the requirements of the Act. The Commission approved the agreement, noting that it provided reasonable protections for employees and reflected a fair balance of interests.

In approving the agreement, the Commission emphasised the importance of good faith negotiations and the need for any enterprise agreement to provide adequate protections for employees. The decision underscores the Commission's role in ensuring that enterprise agreements are fair and meet the statutory requirements. The final orders confirmed the approval of the Austunnel (Qld) Pty Ltd Enterprise Agreement 2022, subject to the conditions outlined in the decision.

Austunnel (Qld) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established