Tandem Building Group (SA) Pty Ltd

[2022] FWCA 3214

[2022] FWCA 3214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tandem Building Group (SA) Pty Ltd

(AG2022/3765)

Tandem Building Group (SA) Pty Ltd / CFMMEU SA Greenfields Agreement 2022 (88 O’Connell Street, North Adelaide. SA 5006)

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 16 SEPTEMBER 2022

Application for approval of the Tandem Building Group (SA) Pty Ltd / CFMMEU SA Greenfields Agreement 2022 (88 O’Connell Street, North Adelaide. SA 5006)

1. An application has been made for approval of an enterprise agreement known as the Tandem Building Group (SA) Pty Ltd / CFMMEU SA Greenfields Agreement 2022 (88 O’Connell Street, North Adelaide. SA 5006) (the Agreement) pursuant to s.182(4) of the Fair Work Act 2009 (the Act) by Tandem Building Group (SA) Pty Ltd (the Applicant).

1. The matter was allocated to my Chambers on 13 September 2022 and was determined on the papers.

1. The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

1. It is noted that Clause 2.8(i)(D) of the Agreement provides that the employer may deduct the cost of the forward journey fare from an employee who terminates or discontinues employment within two weeks of commencing on the job and who does not forthwith return to the employee’s place of engagement. Sections 324-326 of the Act set out the requirements for permitted deductions. To the extent that clause 2.8(i)(D) is inconsistent with ss.324-326 of the Act, it will have no effect.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Clause 5.6 of the Agreement provides for compassionate leave but does not extend the entitlement to when the employee, their spouse, or their de facto partner has a miscarriage or gives birth to a stillborn child. This appears to be inconsistent with s.104(1)(c) of the Act.

1. Clause 1.5(a)(iv) of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 5.6 will not apply to the extent that it is inconsistent with the NES.

1. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

1. Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the CFMMEU, and that the Agreement covers this organisation.

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

1. I am satisfied that it is in the public interest to approve the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 September 2025.

COMMISSIONER

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