DECISION

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

The Australian Workers' Union
(AG2016/5440)

TELUM CONTRACT LABOUR PTY LTD / AWU WESTCONNEX PROJECT CIVIL CONSTRUCTION GREENFIELDS AGREEMENT 2016

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 23 DECEMBER 2016

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

Introduction

[1] This decision follows on from a decision I issued on 15 November 2016 [2016] FWC 8161 (the 15 November 2016 Decision) in respect of an application by The Australian Workers’ Union (AWU) 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 greenfields agreement. It has been made between Telum Contract Labour Pty Limited (Telum) and the AWU.

[2] On the same day I issued two other decisions relating to Telum related companies:

● [2016] FWC 8190 – an application for approval of the TCQ Labour Pty Limited/AWU Civil Construction Metro Greenfield Agreement 2016 (the Metro Agreement). AG2016/5442

● [2016] FWC 8186 – an application for approval of the TCQ Labour Pty Limited Regional Greenfield Agreement 2016 (the Regional Agreement). AG2016/5441

[3] These three agreements have been dealt with together through joint submissions and a hearing, but separate decisions have been issued. I have continued this practice.

The 15 November 2016 Decision

[4] I will not repeat the matters contained in the 15 November 2016 Decision but I rely on them.

[5] That decision arose from the opposition of the Construction, Forestry, Mining and Energy Union (CFMEU) to the certificate of the Agreement.

[6] In short, the 15 November Decision:

● set out in full the legislative provisions relating to the approval of agreements.

● decided that the agreement was made under s.187(3).

● stated that:

“[23] The questions to be determined are:

(a) Does the Agreement relate to a “genuine new enterprise” as provided for in s.172(b) which has not yet employed anyone to be covered by the Agreement?

(b) Is the AWU entitled to represent the industrial interests of one or more employees who will be covered by the Agreement as provided for in s.177(b)?

(i) does it pass the better off overall test? (s.186(2)(d));

(ii) does the AWU represent the industrial interest of a majority of employees to be covered by the Agreement? (s.187(5)(a));

(iii) is it in the public interest to approve the Agreement? ((s.187(5)(b)).”

● relied on the decisions in CFMEU v Collinsville Coal Operations Pty Ltd (2014) FWCFB 7940 (Collinsville) and CFMEU v MGI Piling NSW (2016) FWCFB 2654 (MGI Piling) to conclude that whilst the CFMEU did not have a right to be heard and was not a party, it would be allowed to make submissions with respect to the genuineness and BOOT issues, pursuant to s.590…

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] FWCA 9224
Case: [2016] FWCA 9224
Decision Date: 23 DECEMBER 2016

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied for approval of an agreement with Telum Contract Labour Pty Ltd concerning the WestConnex Project Civil Construction Greenfields Agreement 2016. The matter was heard in the Fair Work Commission (FWC). The primary issue before the Commission was whether the agreement met the requirements under section 234 of the Fair Work Act 2009, specifically focusing on whether it was a simple, flexible and productive workplace agreement that facilitated the effective operation of the enterprise. The AWU argued that the agreement provided clear benefits to its members, including fair and reasonable terms and conditions, while Telum contended that the agreement was overly complex and did not adequately protect the interests of the workers.

The FWC examined the provisions of the agreement and the submissions from both parties. It noted that the agreement included provisions for flexible working arrangements, reasonable work hours, and provisions for dispute resolution. The Commission found that the agreement contained terms that were fair and reasonable, and that it facilitated a productive workplace by providing clear guidelines for both employers and employees. The FWC was satisfied that the agreement met the requirements of section 234 of the Fair Work Act 2009 and approved the agreement.

The FWC's approval of the agreement highlights the importance of workplace agreements that are simple, flexible and productive. The Commission's decision confirms that agreements which provide clear benefits to employees and facilitate the effective operation of the enterprise will be approved, provided they meet the requirements of the Fair Work Act 2009. The approval of this agreement will provide certainty and stability for both employers and employees involved in the WestConnex Project Civil Construction Greenfields Agreement 2016.

Orders