The Australian Workers' Union v Transcity Joint Venture

[2013] FWC 3354

[2013] FWC 3354

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

The Australian Workers' Union
v
Transcity Joint Venture
(C2013/760; C2013/766)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 27 MAY 2013

Alleged dispute regarding Clause 3 and 12.

[1] On 22 May 2013 and on 23 May 2013, the AWU lodged two disputes under s.739 of the Fair Work Act 2009 (“the Act”) alleging contraventions of the contractor provisions of the Transcity Legacy Way Tunnel Works Agreement 2010 (“the Agreement”) by the Transcity Joint-Venture (“TCJV”).

[2] In essence the dispute is both related to concerns that TCJV had not complied with the contractor provisions at clause 12 of the Agreement, and that certain contractors were on site without the requisite prior consultation and that the AWU was uncertain as to whether those contractors and subcontractors were being afforded the same terms and conditions of employment as they would had they been employed under the Agreement.

[3] The TCJV’s obligations under clause 12 of the Agreement are unremarkable. They merely require TCJV, once it anticipates a requirement to engage contractors, to consult with the AWU about its intentions. This would reasonably involve TCJV explaining the operational requirements for the engagements (they may be dry hire equipment issues or specialist skills related) and the duration thereof.

[4] Beyond that, the TCJV is obligated under the terms of the Agreement to ensure that any contractors it does engage are “afforded the same terms and conditions of engagement or terms no less favourable as they would receive if they were engaged as employees under this agreement performing the same work”.

[5] Following the discussions of these issues, I consider that it would be helpful for the future relationships between the parties to make the following recommendation:

• The TCJV will meet with the AWU as soon as practicable for both sides to outline the circumstances of the engagement of the various contractors who are currently on the project (some of which may be equipment related and some labour related).



• The TCJV will use its best endeavours to maintain communication with the AWU in relation to future circumstances in which contractors are engaged on the project.



• TCJV has in place what appears to be a comprehensive audit procedure for ensuring that each contractor on site is meeting the full range of obligations under the Agreement. To authenticate its current audit procedure with the AWU, TCJV must provide the AWU access to a completed audit.



• The audit documents to which access will be provided must be redacted so that they do not identify the name of any particular contractor or the identity of any particular employee or subcontractor.



• In future, where from time to time the AWU has a concern that a particular contractor might not be affording the same terms and conditions as the Agreement, the AWU may request of the TCJV that it undertake or give evidence that it has undertaken an audit of the particular contractor.



• To this end, the TCJV will be required to provide a signed undertaking within a 14 day period following the request by the AWU that it has completed the audit in respect of the relevant contractor and is subsequently satisfied (or otherwise as the case may be) that the Agreement obligations (under Clause 12(a)(II) of the Agreement) are being fulfilled.



• The AWU will only make such requests for particularised audits when it has genuine reasons for its concerns and not so as to cause operational difficulties for TCJV.



• Any dispute arising from the procedure above may constitute an application under s.739 of the Act (as an alleged breach of this Recommendation).

SENIOR DEPUTY PRESIDENT

<Price code A,  PR537295>