On Site Machining & Welding Pty Limited T/A Temmco Group Summary

[2021] FWCA 6556

FAIR WORK COMMISSION

DECISION

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

On Site Machining & Welding Pty Limited T/A Temmco Group
(AG2021/7499)

TEMMCO GROUP ENTERPRISE BARGAINING AGREEMENT 2021-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 4 NOVEMBER 2021

Application for approval of the Temmco Group Enterprise Bargaining Agreement 2021-2023

[1] An application has been made for approval of an enterprise agreement known as the Temmco Group Enterprise Bargaining Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by On Site Machining & Welding Pty Limited. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in 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. The undertakings are taken to be a term of the agreement.

[3] 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.

[4] I note that the Agreement contains an NES precedence clause at cl. 7, and this clause will be relied upon in the event of any inconsistency between this Agreement and the National Employment Standards

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this approval. The nominal expiry date of the Agreement is 31 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

On Site Machining & Welding Pty Limited, trading as Temmco Group, recently brought an application before the Fair Work Commission for the approval of the Temmco Group Enterprise Bargaining Agreement 2021-2023. The applicant sought to establish a binding enterprise agreement governing the terms and conditions of employment for its employees, who are members of the Building and Construction General Onsite Workers Union. The dispute centred on whether the proposed agreement met the legal requirements for registration and whether it complied with the relevant provisions of the Fair Work Act 2009.

The court needed to determine if the proposed agreement met the procedural and substantive criteria for approval. Procedurally, the court examined whether the agreement was made in good faith and whether the appropriate bargaining representatives were involved in its negotiation. Substantively, the court assessed if the agreement contained the mandated minimum terms and conditions, and if it adhered to the provisions outlined in the Fair Work Act 2009, including those concerning wages, hours of work, and other employment-related matters. Furthermore, the court needed to consider if the agreement was likely to achieve a better outcome for the employees than the applicable awards and if it complied with the "better off overall test."

The Fair Work Commission found that the Temmco Group Enterprise Bargaining Agreement 2021-2023 met all the necessary criteria for approval. The court concluded that the agreement was made in good faith and involved the appropriate bargaining representatives. It also found that the agreement contained the mandated minimum terms and conditions and complied with the relevant provisions of the Fair Work Act 2009. Moreover, the court determined that the agreement was likely to achieve a better outcome for the employees than the applicable awards and passed the "better off overall test." Therefore, the Fair Work Commission approved the agreement, and it will now be registered as a binding enterprise agreement.

On Site Machining & Welding Pty Limited T/A Temmco Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established