T.C. Drainage (WA) Pty Ltd

[2023] FWCA 509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

T.C. Drainage (WA) Pty Ltd

(AG2023/160)

T.C. Drainage (WA) Pty Ltd. Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 17 FEBRUARY 2023

Application for approval of the T.C. Drainage (WA) Pty Ltd. Enterprise Agreement 2022.

T.C. Drainage (WA) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the T.C. Drainage (WA) Pty Ltd. Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, and 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, 188 and 190, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 17 February 2023 and, in accordance with s.54, will operate from 24 February 2023. The nominal expiry date of the Agreement is 17 February 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by T.C. Drainage (WA) Pty Ltd for the approval of their Enterprise Agreement 2022. The dispute centred around the terms of employment for the company's employees, which were set out in the proposed agreement. The application was brought under the Fair Work Act 2009, which mandates that certain agreements must be approved by the Fair Work Commission to ensure they meet specific criteria for being considered "appropriate" agreements.

The legal issues before the Commission included whether the agreement provided for fair and reasonable terms and conditions of employment, whether it was free from coercion or undue influence, and whether it met the requirements for "direct" agreements under the Act. Additionally, the Commission had to assess if the agreement provided for appropriate mechanisms for dispute resolution and if it was fair in relation to the bargaining power of the parties involved.

The Commission found that the proposed agreement was appropriate for approval. It concluded that the agreement was fair and reasonable, taking into account the need to balance the interests of both the employer and the employees. The Commission was satisfied that the agreement was free from any form of coercion or undue influence and that it provided for appropriate dispute resolution mechanisms. Furthermore, the Commission considered the bargaining power of the parties and determined that the agreement was fair in this regard. The agreement was deemed to be a direct agreement, meeting all the necessary legislative requirements.

As a result of the findings, the Fair Work Commission approved the Enterprise Agreement 2022, which will now govern the employment terms and conditions for the employees of T.C. Drainage (WA) Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established