DECISION

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

TC Formwork Pty Ltd
(AG2017/5115)

TC FORMWORK PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 4 MAY 2018

Application for approval of the TC Formwork Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the TC Formwork Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TC Formwork Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 May 2018. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, TC Formwork Pty Ltd sought approval of the TC Formwork Pty Ltd Enterprise Agreement 2017. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), contested the application, raising several concerns about the agreement's provisions. The case was heard by Deputy President K.J. Owen, who was tasked with determining whether the enterprise agreement met the necessary legal standards for approval.

The legal issues before the court centred on whether the agreement complied with the Fair Work Act 2009, specifically sections 227 and 230. The CFMEU argued that the agreement failed to meet the requirements for good faith bargaining and did not adequately protect the employees' rights and interests. The court had to assess whether the agreement was genuinely negotiated, whether it was procedurally fair, and whether it provided fair and reasonable terms for the employees.

Deputy President Owen found that the agreement did not meet the statutory requirements for approval. The court identified several procedural issues in the bargaining process, which undermined the integrity of the negotiation. The agreement was found to lack transparency and to contain terms that did not adequately protect employees' rights. Consequently, the court rejected the application for approval. The Deputy President's decision was grounded in the need to ensure that enterprise agreements uphold the principles of fairness and good faith in industrial relations.

The final orders of the court were that the application for approval of the TC Formwork Pty Ltd Enterprise Agreement 2017 be dismissed. The agreement was not approved, and the court's decision reinforced the importance of robust bargaining processes in the formation of enterprise agreements under the Fair Work Act.

TC Formwork Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established