TCM Pty Ltd

[2022] FWCA 4324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TCM Pty Ltd

(AG2022/4770)

TCM Pty Ltd Enterprise Agreement 2022

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 8 DECEMBER 2022

Application for approval of the TCM Pty Ltd Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the TCM Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TCM Pty Ltd. 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, 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 32.2(c) – Leave payment
·   Clause 32.6(b) – Payment of leave on termination of service
·   Clause 33.2(d) – Entitlement
·   Clause 47.3 – Termination of employment by an employee

However, noting the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 December 2022. The nominal expiry date of the Agreement is 8 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved an application by the Fair Work Commission for approval of an enterprise agreement proposed by TCM Pty Ltd. The application was brought before the Fair Work Commission as the primary tribunal with jurisdiction over employment law matters. The enterprise agreement in question sought to establish terms and conditions of employment for employees of TCM Pty Ltd. The nature of the dispute was essentially procedural, focusing on whether the agreement met the necessary legal criteria for approval.

The court was required to determine whether the proposed agreement complied with the provisions of the Fair Work Act 2009, particularly focusing on the sections concerning the application for approval of an enterprise agreement. Key issues included whether the agreement had been negotiated in good faith, whether it provided for the appropriate processes for resolving disputes, and whether it included all the mandated terms and conditions as stipulated by the legislation. Additionally, the court examined if the agreement had been subject to a sufficient period of exposure to employees and if it contained appropriate mechanisms for re-negotiation and modification.

The court found that the proposed enterprise agreement met all the statutory requirements for approval. It confirmed that the agreement had been negotiated in good faith and contained all the necessary terms and conditions. The court also noted that the agreement provided for appropriate dispute resolution mechanisms and had been adequately exposed to the employees for their consideration. Therefore, the court approved the application for the agreement, finding it to be compliant with the Fair Work Act. The court's decision was based on a comprehensive analysis of the agreement against the statutory criteria and a determination that the agreement was fair and reasonable in all respects.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established