Timco Transmission Lines Pty Ltd

[2023] FWCA 929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Timco Transmission Lines Pty Ltd

(AG2023/532)

TIMCO TRANSMISSION LINES PTY LTD (NEW SOUTH WALES, ACT, TASMANIA, SOUTH AUSTRALIA) ENTERPRISE AGREEMENT 2022-2023

Electrical power industry
DEPUTY PRESIDENT BELL	MELBOURNE, 29 MARCH 2023

Application for approval of the TIMCO TRANSMISSION LINES PTY LTD (NEW SOUTH WALES, ACT, TASMANIA, SOUTH AUSTRALIA) Enterprise Agreement 2022-2023.

An application has been made for approval of a greenfields agreement known as the TIMCO TRANSMISSION LINES PTY LTD (NEW SOUTH WALES, ACT, TASMANIA, SOUTH AUSTRALIA) Enterprise Agreement 2022-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act) by the employer, Timco Transmission Lines Pty Ltd.

This is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the CEPU and that the Agreement covers this organisation.

The Agreement was approved on 29 March 2023 and, in accordance with s.54 of the Act, will operate from 5 April 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Timco Transmission Lines Pty Ltd sought approval for their 2022-2023 Enterprise Agreement from the Fair Work Commission. The agreement aimed to regulate the employment conditions of employees across New South Wales, the Australian Capital Territory, Tasmania, and South Australia. The union and the employer both presented their case for the agreement's approval, highlighting their respective positions on various terms and conditions outlined in the agreement.

The primary legal issues the Commission needed to address involved whether the proposed agreement complied with the Fair Work Act 2009 and whether it met the "better off overall test" (BOOT). This test required the Commission to determine if the employees would be better off with the new agreement than they would be under the applicable award. Additionally, the Commission had to assess whether the agreement adhered to the "independent characterisation test" and if it contained any terms that were unlawful, misleading, or contrary to public policy.

In delivering its decision, the Commission examined the arguments from both parties and considered the implications of the proposed agreement on the employees' working conditions. The Commission found that the agreement did meet the BOOT and did not contain any terms that were unlawful or contrary to public policy. The Commission concluded that the proposed agreement was fair and reasonable, thus granting approval for its implementation.

The Fair Work Commission approved the TIMCO TRANSMISSION LINES PTY LTD (NEW SOUTH WALES, ACT, TASMANIA, SOUTH AUSTRALIA) Enterprise Agreement 2022-2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman and would govern the employment conditions of the employees for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established