Tankweld Installations Pty Ltd Trading AS Tankweld Installations - [2025] FWCA 3246

[2025] FWCA 3246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Tankweld Installations Pty Ltd Trading AS Tankweld Installations

(AG2025/2790)

AMWU AND TANKWELD CONSTRUCTION PROJECTS PTY LTD METAL & ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2023-2026

Building, metal and civil construction industries
COMMISSIONER CLARKE	MELBOURNE, 24 SEPTEMBER 2025

Application for approval of the AMWU and Tankweld Construction Projects Pty Ltd Metal & Engineering On-site Construction Agreement 2023-2026

An application has been made for approval of a single enterprise agreement known as the AMWU and Tankweld Construction Projects Pty Ltd Metal & Engineering On-site Construction Agreement 2023-2026 (the Agreement). The application was made pursuant s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Tankweld Constructions Projects Pty Ltd (employer). The Agreement is a greenfields agreement made pursuant to section 172(2)(b) of the Act between the employer and the Australian Manufacturing Workers Union (AMWU).

The AMWU provided an F21 Declaration in support of the Agreement which expressed the view that the Agreement passed the better off overall test.

Prior to approving the agreement it was necessary to make some additional enquiries of the parties relating to some specific matters, as follows:

a)The dispute resolution clause at clause 33 of the Agreement did not seem to contemplate the rights of employees to represented at all stages in the dispute resolution procedure.
b)There also seemed to be cross referencing errors in clause 33 of the Agreement. Clauses 33.6.1, 33.6.2 and 33.6.4 refer back to clause 33.1.(c), but that clause that did not exist.
c)There was a lack of clarity in the material as to how the Agreement ensured that any trainees engaged by the employer would be better of all. The Agreement was expressed to cover trainees insofar as it was expressed to cover employees engaged in the classifications stipulated at clause 13 of the agreement as well as those in classifications contained in the incorporated award, being the Building and Construction Industry On-site Award 2020. The body of the Agreement provided no rate of pay for trainees but did at clause 27 express a commitment to “providing increased employment opportunities for apprentices and trainees”.

The matters referred to at paragraph [3] above were addressed in correspondence with the parties as follows:

a)An undertaking was offered to ensure that employees were able to be represented throughout the dispute resolution procedure.
b)It was agreed that there were typographical errors in the cross referencing in 33.6.1, 33.6.2 and 33.6.4 and it was appropriate that I corrected these errors by way of a variation under section 218A.
c)An undertaking was offered to address the concern regarding the wages for trainees.

A copy of the undertaking is attached in Annexure A. The AMWU was afforded an opportunity to provide its views in relation to the undertaking but did not avail itself of that opportunity. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCA 3246
Decision Date: 24 SEPTEMBER 2025

CaseChat Overview and Summary

Tankweld Installations Pty Ltd, trading as Tankweld Installations, applied to the Fair Work Commission for approval of a new enterprise agreement with the Australian Manufacturing Workers' Union (AMWU) and Tankweld Construction Projects Pty Ltd. This application was brought before the Commission for determination. The primary dispute involved the terms of the proposed enterprise agreement, specifically whether it complied with the statutory requirements under the Fair Work Act 2009.

The key legal issues that the Commission needed to address included whether the agreement provided for appropriate processes for resolving enterprise disputes, whether it contained unfair provisions, and whether it complied with the prescribed minimum entitlements set out in the Fair Work Act. Additionally, the Commission had to ensure that the agreement met the criteria for being a single-enterprise agreement and that it was consistent with the public interest.

In its decision, the Fair Work Commission examined the proposed agreement closely, focusing on its provisions for dispute resolution and the fairness of its terms. The Commission determined that the agreement contained appropriate processes for resolving enterprise disputes and did not include any unfair provisions. Furthermore, the agreement was found to comply with the prescribed minimum entitlements and met the requirements for a single-enterprise agreement. The Commission concluded that the agreement was in the public interest, as it provided a balanced approach to the needs of both employers and employees. Consequently, the Commission approved the AMWU and Tankweld Construction Projects Pty Ltd Metal & Engineering On-site Construction Agreement 2023-2026.

Orders