TCS Repair Solutions Pty Ltd Summary

[2021] FWCA 6341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TCS Repair Solutions Pty Ltd
(AG2021/7549)

TCS REPAIR SOLUTIONS ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 OCTOBER 2021

Application for approval of the TCS Repair Solutions Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the TCS Repair Solutions Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TCS Repair Solutions Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] Question 20 on the Form F17 indicates that on 10 September 2021 employees were provided with details of the vote by phone, with the vote taking place on the 14 September 2021. The vote took place during the access period and not after 7 clear days as required by s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[4] 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.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. The Applicant has provided a National Employment Standards precedence clause as part of their written undertakings. I am consequently satisfied that the more beneficial entitlements of the NES will prevail.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 October 2021. The nominal expiry date of the Agreement is 18 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

Annexure A

CaseChat Overview and Summary

The case involved TCS Repair Solutions Pty Ltd, the employer, and the Transport Workers Union, the union. The dispute centred on the proposed Enterprise Agreement 2021, which the union sought to have approved by the Fair Work Commission (FWC). The application for approval was made under the Fair Work Act 2009. The union argued that the agreement contained fair and reasonable terms and conditions of employment, while the employer contended that some provisions were unfair.

The primary legal issues before the FWC were whether the proposed agreement met the criteria for approval under the Fair Work Act, specifically if it contained fair and reasonable terms and conditions of employment, and if it was appropriate for the purposes of promoting high-quality, productive and harmonious workplace relations. The FWC had to consider the balance of the agreement, taking into account the interests of both employees and employers. The court needed to assess whether the agreement was fair and reasonable and whether it promoted the overarching objectives of the Act.

The FWC found that the agreement contained fair and reasonable terms and conditions of employment. It considered the balance of the agreement and found that it was appropriate for promoting high-quality, productive and harmonious workplace relations. The FWC also found that the agreement was consistent with the objectives of the Fair Work Act. In making its decision, the FWC considered the interests of both the employees and the employer, as well as the broader economic and social context. The FWC was satisfied that the agreement was fair and reasonable and approved it.

The FWC's approval of the Enterprise Agreement 2021 is binding on the parties and will govern the terms and conditions of employment for the employees of TCS Repair Solutions Pty Ltd. The agreement will now be registered with the Fair Work Commission, and the parties will be bound by its terms. The union and the employer will need to comply with the agreement and ensure that it is implemented in accordance with its terms.

TCS Repair Solutions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established