TDM Constructions Pty Ltd

[2023] FWCA 3096

[2023] FWCA 3096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TDM Constructions Pty Ltd

(AG2023/2943)

TDM CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 25 SEPTEMBER 2023

Application for approval of the TDM Constructions Pty Ltd Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the TDM Constructions Pty Ltd Enterprise Agreement 2023 (Agreement). The application was made by TDM Constructions Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). In particular:

• Clause 15.1.1 of the Agreement provides that the normal working hours for a full-time employee shall be up to 45 hours per week. Section 62 of the Act provides that an employer must not request or require a full time employee to work more than 38 hours in a week unless the additional hours are reasonable.

  • Clause 18.3.5 of the Agreement provides, in relation to personal/carer’s leave, that an employee must notify the employer of their absence before 7.00 am on the first day of the absence where practicable. Section 107 of the Act provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
  • Clause 18.3.1 of the Agreement provides entitlements to compassionate leave but does not extend this entitlement to circumstances involving still birth or miscarriage in accordance with s.104 of the Act.

1. However, noting clause 5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. Further, the Applicant has provided undertakings specific to the above provisions to address the inconsistencies.

1. Clause 11 of the Agreement provides that the “wage rates in Appendix A include a $1 per hour loading in full or part compensation for any one or two work related allowances totalling less than one dollar contained in the incorporated instrument related to on-site duties”. The Commission sought clarification as to which allowances are intended to be rolled into the loaded rates in Appendix A and what is intended in relation to other allowances that would be payable under the Award where the Agreement is silent. The Applicant clarified that the rates in Appendix A have been calculated to include tool allowance (applicable to bricklayers) and industry allowance. The daily fares allowance is also incorporated in the loaded rates in Appendix A on account of clause 10 of the Agreement. The Applicant clarified that other allowances in the Award may be included in the rates where the Award entitlement is up to a maximum of $1 per hour. The Applicant provided modelling to demonstrate the effect of this. The Applicant clarified that where the Award entitlement is greater than $1 per hour, the allowance will be payable in accordance with the Award. 

1. The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 October 2023. The nominal expiry date of the Agreement is 25 September 2027.

COMMISSIONER

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Annexure A