DECISION

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

The Australian Workers' Union
(AG2016/5442)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 15 NOVEMBER 2016

Application for approval of the TCQ Labour Pty Limited / AWU Civil Construction Metro Greenfield Agreement 2016.

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

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 8190
Case: [2016] FWC 8190
Decision Date: 15 NOVEMBER 2016

CaseChat Overview and Summary

The Australian Workers' Union has applied for the approval of the TCQ Labour Pty Limited / AWU Civil Construction Metro Greenfield Agreement 2016. The applicant union and the employer, TCQ Labour Pty Limited, had negotiated the agreement, which seeks to establish a framework for employment conditions in the civil construction sector. The application was heard by the Fair Work Commission, which is responsible for approving such agreements under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement met the procedural and substantive requirements for approval under the Act, and whether the agreement was in the public interest. The Commission had to determine if the agreement was genuinely negotiated, if it provided for a fair and efficient workplace, and if it contained provisions that were necessary to ensure a productive and harmonious workplace. Additionally, the Commission needed to ensure that the agreement did not undermine the rights and protections provided by the Act.

The Commission found that the agreement satisfied the procedural requirements for approval, as it had been genuinely negotiated between the parties. It also found that the agreement provided for a fair and efficient workplace, as it contained provisions that were necessary to ensure a productive and harmonious workplace. The Commission considered that the agreement did not undermine the rights and protections provided by the Act, and that it was in the public interest. Therefore, the Commission approved the agreement, which will now apply to the employees of TCQ Labour Pty Limited in the civil construction sector.

The Fair Work Commission approved the TCQ Labour Pty Limited / AWU Civil Construction Metro Greenfield Agreement 2016, and it will now apply to the employees of TCQ Labour Pty Limited in the civil construction sector. The Commission found that the agreement met the procedural and substantive requirements for approval under the Fair Work Act 2009, and that it was in the public interest. The agreement provides for a fair and efficient workplace, and contains provisions that are necessary to ensure a productive and harmonious workplace. The approval of this agreement will provide certainty and stability for both the employer and employees in the civil construction sector.

Orders