Austunnel (VIC) Pty Ltd Summary

[2023] FWCA 2514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Austunnel (VIC) Pty Ltd

(AG2023/2569)

AUSTUNNEL (VIC) PTY LTD & THE AUSTRALIAN WORKERS' UNION AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER CONNOLLY	MELBOURNE, 14 AUGUST 2023

Application for approval of the Austunnel (Vic) Pty Ltd & The Australian Workers' Union Agreement 2023

An application has been made for approval of an enterprise agreement known as the Austunnel (Vic) Pty Ltd & The Australian Workers' Union Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Austunnel (VIC) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 4 August 2023.

On 7 August 2023, the Applicant was invited to clarify aspects of the Agreement and to address these matters including through the provision of an undertaking.

The Applicant has provided written undertakings, dated 8 August 2023, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in the case were Austunnel (VIC) Pty Ltd and the Australian Workers' Union, who sought approval for their 2023 agreement. The dispute was brought before the Fair Work Commission, where the primary focus was the application for the approval of the agreement between the employer and the union. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues central to the case involved assessing whether the proposed agreement complied with the legislative criteria for approval, including ensuring that it provided for a genuine enterprise agreement, it did not discriminate unfairly, and that it was made in good faith. Furthermore, the court needed to consider whether the agreement adequately addressed the terms and conditions of employment, such as wages, working hours, and other provisions that are essential for a fair and balanced agreement.

In its decision, the Fair Work Commission found that the agreement met the statutory requirements. The Commission highlighted that the agreement was made in good faith and did not contain any unfair discrimination. Additionally, it provided for a genuine enterprise agreement, meeting all the necessary criteria as stipulated by the Fair Work Act 2009. Therefore, the Commission approved the Austunnel (Vic) Pty Ltd & The Australian Workers' Union Agreement 2023. The Commission's approval was based on the comprehensive assessment of the agreement's contents and its alignment with the legislative framework. The final order was that the agreement be approved as a genuine enterprise agreement.

Austunnel (VIC) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established