TasBuild Limited

[2021] FWCA 6995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TasBuild Limited
(AG2021/8468)

TASBUILD LIMITED ENTERPRISE AGREEMENT 2021

Miscellaneous
COMMISSIONER O'NEILL	MELBOURNE, 6 DECEMBER 2021

Application for approval of the TasBuild Limited Enterprise Agreement 2021

[1] TasBuild Limited has applied for approval of an enterprise agreement known as the TasBuild Limited Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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

[3] I observe that clause 9 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 December 2021. The nominal expiry date of the Agreement is 5 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, TasBuild Limited, sought the Fair Work Commission's approval of the TasBuild Limited Enterprise Agreement 2021. The respondents were various trade unions representing employees in the Tasmanian building and construction industry. The application was made under the Fair Work Act 2009, which provides a process for the approval of enterprise agreements. The dispute centred on whether the agreement met the statutory requirements for approval, including whether it provided for minimum rates of pay, conditions, and entitlements.

The primary legal issues involved determining if the agreement was genuinely an enterprise agreement, whether it complied with the provisions of the Fair Work Act, and if it met the high-level standards test. This test assesses whether the agreement would provide better off, or at least no worse off, for the employees in comparison to the relevant award or safety net. The court needed to consider the specific provisions of the agreement, such as the minimum rates of remuneration, leave entitlements, and dispute resolution mechanisms, to ascertain compliance and fairness.

The Fair Work Commission found that the TasBuild Limited Enterprise Agreement 2021 was genuinely an enterprise agreement and met the statutory requirements for approval. The Commission concluded that the agreement provided for minimum rates of pay, conditions, and entitlements that were at least no worse off than those provided by the relevant award. The agreement also included provisions for dispute resolution, which met the high-level standards test. The Commission approved the agreement, finding it to be in the interests of promoting conciliation, arbitration, and the avoidance of industrial disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established