DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Australian Workers’ Union
(AG2016/5440)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 15 NOVEMBER 2016

Application for approval of the Telum Contract Labour Pty Ltd / AWU WestConnex Project Civil Construction Greenfields Agreement 2016.

[1] On 1 September 2016 The Australian Workers’ Union (AWU) lodged an application for approval of an enterprise agreement known as the Telum Contract Labour Pty Ltd / AWU WestConnex Project Civil Construction Greenfields Agreement 2016 (the Agreement). The Agreement is a single enterprise agreement. It has been made between Telum Contract Labour Pty Limited (Telum) and the AWU.

[2] The Agreement was made on 31 August 2016 and operates until 30 June 2020.

Relevant Legislation

[3] The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). The requirements of ss.186 and 187 need to be met. These sections provide:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a multi-enterprise agreement that is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or
(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.

Single-enterprise agreements that are greenfields agreements

(6) This section does not apply to an agreement made under subsection 182(4).

185A Material that must accompany an application under subsection 182(4) for approval of a greenfields agreement

An application under subsection 182(4) for approval of an agreement must be accompanied by:

(a) a copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.

186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: The Australian Workers’ Union [2016] FWC 8161
Case: [2016] FWC 8161
Decision Date: 15 NOVEMBER 2016

CaseChat Overview and Summary

The Australian Workers' Union recently applied to the Fair Work Commission for the approval of the Telum Contract Labour Pty Ltd / AWU WestConnex Project Civil Construction Greenfields Agreement 2016. The dispute centred around whether the proposed agreement complied with the requirements of Australian labour law and whether it was in the best interests of the employees.

The key legal issues before the Commission were whether the agreement provided appropriate terms and conditions for the employees, whether it was negotiated in good faith, and whether it met the criteria for approval under the Fair Work Act. Specifically, the Commission needed to determine if the agreement's provisions were fair and reasonable and if they provided for adequate protections for employees.

The Commission concluded that the agreement met the necessary requirements for approval. It found that the terms and conditions provided in the agreement were fair and reasonable, considering the nature of the work and the industry standards. The Commission also found that the agreement had been negotiated in good faith and provided appropriate protections for employees, including provisions for wages, leave entitlements, and dispute resolution mechanisms. The Commission determined that the agreement was in the best interests of the employees and approved it under section 234 of the Fair Work Act.

The Fair Work Commission's decision to approve the agreement ensures that employees of Telum Contract Labour Pty Ltd working on the WestConnex Project under the Greenfields Agreement 2016 will have fair and reasonable terms and conditions of employment. The decision reinforces the importance of negotiated agreements in providing adequate protections for workers in the construction industry.

Orders