Austunnel (Vic) Pty Ltd

[2024] FWCA 2560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Austunnel (Vic) Pty Ltd

(AG2024/2355)

AMWU AND AUSTUNNEL (VIC) PTY LTD METAL ENGINEERING NORTH EAST LINK PROJECT AGREEMENT 2023 – 2026

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 10 JULY 2024

Application for approval of the AMWU and Austunnel (VIC) Pty Ltd Metal Engineering North East Link Project Agreement 2023 – 2026.

Austunnel (Vic) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AMWU and Austunnel (VIC) Pty Ltd Metal Engineering North East Link Project Agreement 2023 – 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 13 May 2024 and the Agreement was made on 13 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 10 July 2024 and, in accordance with s.54 of the FW Act, will operate from 17 July 2024. The nominal expiry date of the Agreement is 1 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Austunnel (Vic) Pty Ltd and the Australian Manufacturing Workers' Union (AMWU). The dispute arose in the Fair Work Commission, where the AMWU applied for the approval of a specific agreement concerning the Metal Engineering North East Link Project from 2023 to 2026. The primary focus of the application was to ensure that the terms of the agreement were fair and met the standards set by the Fair Work Act 2009. The AMWU sought to secure employment conditions and protections for its members working on the project, while Austunnel (Vic) Pty Ltd aimed to manage its workforce effectively within the constraints of the agreement.

The legal issues before the Commission included whether the proposed terms of the agreement met the criteria for 'simplification' and 'flexibility' as required by the Fair Work Act. Additionally, the Commission had to determine if the agreement provided fair and reasonable terms for both parties, including the protection of employees' rights and the maintenance of a fair balance between the interests of the employer and the workforce. The Commission also needed to assess if the agreement complied with the 'better off overall test' and whether it appropriately balanced the interests of all stakeholders involved.

In deliberating on these issues, the Commission found that the agreement met the necessary criteria for simplification and flexibility, providing a fair and reasonable balance between the parties. The Commission was satisfied that the agreement did not undermine the rights of employees and provided adequate protections. It also concluded that the agreement would result in the employees being better off overall, considering factors such as wages, conditions, and job security. Therefore, the Commission approved the agreement, finding that it met the statutory requirements and served the interests of both the employer and the employees.

The final orders of the Commission were that the Metal Engineering North East Link Project Agreement 2023-2026, as submitted by the AMWU and Austunnel (Vic) Pty Ltd, be approved. The agreement was to come into effect from the date of the decision and remain in force until the specified end date, barring any further changes or amendments as permitted under the Fair Work Act. The approval of the agreement was intended to provide a stable and fair framework for the project, protecting the rights of employees while allowing the employer to manage the project efficiently.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established