TR Construction Services Pty Ltd

[2018] FWC 3274

[2018] FWC 3274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TR Construction Services Pty Ltd
(AG2017/45)

COMMISSIONER GREGORY PERTH, 6 JUNE 2018

Application for approval of the TR Construction Services Pty. Ltd. Enterprise Agreement 2016.

[1] This decision deals with an application for approval of the TR Construction Services Pty. Ltd. Enterprise Agreement 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by TR Construction Services Pty Ltd (“TR Construction”). It is a single enterprise agreement.

[2] The Agreement was originally approved in a decision handed down on 17 January 2017, 1 however, it was taken on appeal by the Construction, Forestry, Maritime, Mining and Energy Union (“the CFMMEU”). The Full Bench in those proceedings concluded that the Agreement was not capable of passing the better off overall test (“the BOOT”) set out in s.186(2) of the Act and the original decision should be quashed.2 It also noted in its decision that “Clause 2.2 is drafted in terms that lack clarity.”3 However, it continued to state at [33]:

“We think that in all the circumstances it is preferable not to grant permission to appeal in relation to this issue. As earlier stated, as a result of the appeal being upheld in respect of ground 5 of the appeal, the application for approval of the Agreement will have to be heard afresh and re-determined. That will give the Respondent an opportunity to address any concerns that arise with respect to this clause through the provision of an undertaking. That makes it unnecessary to resolve the issue now. Permission to appeal is therefore refused in relation to ground 8.” 4

[3] The Full Bench also had regard to whether clause 9 was an unlawful term in that it could allow parties to opt out of coverage of the Agreement, and therefore be in contravention of s.194(ba) of the Act. The Full Bench again concluded at [37]:

“Having considered the submissions made by the parties, our provisional view is that clause 9 is not a term which is rendered unlawful by s.194(ba). It seeks to facilitate an alternative method of payment for employees under the Agreement, but it does not operate to remove employees from the coverage of the Agreement altogether. As we read the provision, employees on any such alternative arrangement would still be entitled to the other benefits of the Agreement apart from those identified in clause 9.2 (that is, “base hour rates for ordinary hours, overtime work & penalty rates, shiftwork penalties, weekend penalties and annual leave loading”). Clause 9.2 might give rise to different issues about whether such a provision could satisfy the BOOT, but they can be dealt with in the rehearing of the approval application.” 5

[4] The Full Bench then remitted the matter back to a single member for re-determination. This decision deals with the application following the referral by the Full Bench.

[5] It is noted at the outset that, following the referral, the Commission initially convened a conference of the parties to determine how the matter might be progressed. TR Constructions indicated it had already proposed a series of undertakings for the Commission’s consideration, and it was prepared to consider providing further undertakings to satisfy any additional concerns. The CFMMEU indicated it had a range of BOOT issues it wanted to raise, and also had issues to do with the coverage of the Agreement. It was also uncertain about whether the issues associated with coverage could be resolved by means of an undertaking. However, both parties indicated they were prepared to hold further discussions to determine whether any agreed resolution could be reached, but the Commission was subsequently informed that no agreement had been able to be concluded. The matter was accordingly set down for hearing.

[6] Mr Daniel White from Mills Oakley was given permission to appear on behalf of TR Construction under s.596(2)(a) of the Act as the matter involves a degree of complexity and his involvement might enable it to be dealt with more efficiently. Mr Andrew Thomas appeared on behalf of the CFMMEU and sought to be heard in accordance with s.590.

Right to be Heard

[7] The first issue to be dealt with concerns the CFMMEU’s entitlement to be heard and this was dealt with during the course of the proceedings. The CFMMEU indicated in a written submission 6 that s.590 of the Act provides the Commission with a broad discretion in this regard. It also emphasises that the matter is now before the Commission as a consequence of an appeal brought by the Union. It also has a long history of participation and involvement in the mining industry and with the Mining Industry Award 2010.7

[8] It also notes that there is no “contradictor” 8 in the proceedings and it can therefore be of assistance to the Commission in dealing with the application. While it acknowledges that it does not have a right to be heard, the Commission has a broad discretion to inform itself in any manner it sees fit, and the exercise of this discretion is not qualified by a requirement that some unusual or different circumstance must first be found to exist. It also submits that previous decisions have made clear that it is appropriate for the Commission to have regard to the grounds of objection being foreshadowed in considering whether the Commission should grant leave to be heard.

[9] TR Constructions submits in response that to be granted leave the CFMMEU “must show it has a right, interest or legitimate expectation in relation to the agreement’s approval, or otherwise satisfy the Commission that it’s appropriate to exercise its discretion to grant leave,” 9 in circumstances where the Agreement was made between the employer and its employees, with no external bargaining representative involved. It continues to submit that the matters relied on by the CFMMEU are similar to those dealt with by the Full Bench in the decision in Collinsville10 and which were found to be insufficient to entitle the Union to appear.

[10] It continues to submit that there are no unusual circumstances in the present matter that warrant an exercise of the discretion to allow the CFMMEU to be heard. It also rejects the absence of a contradictor as justification for granting leave, and submits that the Commission is evidently able to address the BOOT and the other statutory considerations it is required to take into account. These matters do not, for example, require illumination through witness evidence or the cross examination of witnesses. It also submits that allowing the CFMMEU to be heard would add unnecessary complexity to a system that is intended to be simple and straightforward in its approach and operation. It also notes that the Union has already had the opportunity to ventilate its concerns in the earlier appeal proceedings, and it does not need a further opportunity at this time.

[11] TR Constructions also opposes the CFMMEU’s reference to the grounds of objection in support of its application, and submits that it should not be allowed to pull “its case up by its boot straps.” 11 In its submission this approach defeats the purpose of the leave requirement.

[12] As indicated, a decision about the CFMMEU’s right to be heard was made during the course of the proceedings. The Commission indicated that it had already had the opportunity to consider this matter prior to the hearing, given its understanding that the Union sought to be heard. It, firstly, acknowledged that s.171 of the Act intends to provide for a simple, fair and flexible framework of agreement making. However, it had particular regard to the fact that the Union had already been involved in the matter to a significant extent in its role as an appellant in the Full Bench proceedings. The Full Bench had also made reference in its decision to various matters that it believed warranted further consideration, noting that the Union would have the opportunity to provide further submissions about these matters following the further referral of the application to a single member.

[13] The Commission accordingly concluded that it would be unusual in all the circumstances if the CFMMEU were now to be excluded from being heard. It also acknowledged that it has a broad discretion under s.590, and in carrying out its statutory responsibilities it might well be assisted by hearing from the Union in regard to the matters highlighted by the Full Bench. The Commission also noted that in coming to this decision it had not come to any concluded view about the respective merits of the matters sought to be raised by the Union.

The Submissions and Evidence

TR Constructions

[14] TR Constructions, firstly, makes reference to a series of undertakings provided to Commission on 14 February 2018. The first of these proposes to “Omit clause 2.2 of the Agreement in its entirety.” 12 It continues to submit that this is permitted by the combined effect of ss.190 and 186(4) of the Act, and the undertaking removes any concerns that might have existed about the sub clause acting to change the coverage of the Agreement. It submits, in conclusion, that the proposed undertaking deals with both the concerns about the sub clause enabling the employer and employees to opt out of the Agreement, and any issues in respect of s.194(ba). It also dealt with any concerns that might exist about the coverage of the Agreement.

[15] The second of the proposed undertakings deals with clause 9 of the Agreement and states, “In relation to clause 9 of the Agreement, the Company will ensure that any Employee engaged on a flat rate of pay or annualised salary arrangement will at least be paid the amounts the Employee would have otherwise earned under the terms and conditions of the Agreement if they had not been engaged on a flat rate of pay or annualised salary arrangement.” 13 TR Constructions submits it makes clear that an employee engaged on a flat rate of pay, or an annualised salary arrangement, will receive entitlements that are at least equivalent to those provided for under the Agreement. It continues to submit that the underlying Mining Industry Award 2010 also provides for annualised salary arrangements, and the clause is consistent with those Award provisions.

[16] It also made reference to the decision of Gostencnik DP in Main People Pty Ltd[2015] FWCA 8917, who at [5] accepted a similar undertaking. However, in that case the undertaking also provided for the employer to provide a reconciliation at each pay period in order to confirm that the employees were better off under the annualised or flat rate of pay arrangements when compared to the entitlements under the Agreement. TR Constructions indicated it would now be prepared to provide an undertaking in similar terms if requested to do so by the Commission.

[17] The next issue concerns the submission by the CFMMEU that the Agreement does not contain the locomotive drivers allowance, and therefore cannot satisfy the requirements of the BOOT. TR Constructions submits in response that the Agreement was never intended to cover locomotive drivers, and no such classification is provided for in the Agreement. It also emphasises that it is not involved in mining related rail operations, and has no intention of ever being so involved. In addition, its proposed undertaking does not change the coverage of the Agreement but instead simply provides clarification about who is covered. The undertaking is in the following terms, “The Agreement does not cover locomotive drivers.” 14

[18] TR Constructions also rejects the suggestion that the amended pay rates set out in the next undertaking represent a “substantial change” 15 to the Agreement, and in this context relies on the decision in CFMEU v Kaefer Integrated Services at paragraph 40.16 It also provided examples of roster arrangements, which it submits demonstrate that the employees are now clearly better off overall under the Agreement when compared to the underlying Mining Industry Award 2010.

[19] It also makes reference to clauses 6.5, 6.6 and 8.5 of the Agreement which each provide for increases to the entitlements in the Agreement during its life. It also emphasises that it is clearly unlawful for an employer to pay employees less than what they would otherwise have been entitled to under the underlying Award.

[20] In response to the issue raised by the CFMMEU in regard to stand down TR Constructions acknowledges that the Agreement contains a stand down provision and the Award does not. However, it also submits that the Act contains a default stand down provision and the CFMMEU’s objection should be considered in this context.

[21] It also proposes a further undertaking in regard to clause 26.8 in the Agreement in the light of the more recent Commission decision in the matter of Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia (‘Iplex’), 17 which was handed down subsequent to the application in this matter being made. The undertaking proposes to delete clause 26.8 “Abandonment,”18 which states: “Should an employee have three consecutive days of unauthorised absence from work, the Employee shall be deemed to have abandoned their employment, unless, through exceptional circumstances they have been unable to communicate their absence to the Employer.”19 This is proposed in response to the finding in Iplex that a similar abandonment of employment clause acted to deny employees the entitlements otherwise contained in s.117 of the Act.

[22] TR Constructions finally makes reference to sub clause 12.9 of the Agreement and submits that it confirms that continuous shift workers will be paid double time for all hours worked. 20

[23] It also submits that the undertakings proposed do not involve “substantial change” to the original Agreement, and only provide confirmation and/or clarification about the existing terms in the Agreement, together with the increases in wage rates. It also submits that those increases deal with any concerns that some of the non-monetary benefits contained in the Award are not provided for in the Agreement.

The CFMMEU

[24] The CFMMEU provided a written submission which it supplemented in its oral submissions. 21 They deal primarily with the various undertakings now proposed by TR Constructions.

[25] Undertaking 1 – Sub Clause 2.2 – the CFMMEU submits that the existing sub clause enables TR Constructions to enter into further enterprise agreements in the future, meaning that the existing Agreement would no longer apply to those employees. In its submission this offends s.194(ba) of the Act because it means TR Constructions may elect to not be covered by the Agreement. It is therefore an unlawful term. It also submits that it offends s.58 because it purports to enable an Agreement, which has current application, to be replaced by another Agreement. It also creates uncertainty about coverage and application as it enables TR Constructions to manipulate coverage by creating future site or project-based agreements.

[26] The CFMMEU acknowledges that an undertaking can be given in response to a potentially unlawful provision. However, it submits that the undertaking now proposed, which would delete sub clause 2.2, acts to change the coverage of the Agreement and therefore cannot be accepted by the Commission. It relies on the decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Australian Manufacturing Workers’ Union v Main People Pty Ltd[2015] FWCFB 4467 (‘Main People’) in support of this submission and makes reference, in particular, to the following extract at [35]:

“For that reason an undertaking which purports to alter the coverage of an enterprise agreement by excluding classes of persons who, on the face of the agreement would be covered by it, will always be likely to be a significant change.” 22

[27] It submits, in conclusion, that regardless of any consideration about the ability to provide an undertaking, clause 2.2 offends s.58 and is therefore invalid and of no effect. Section 58 makes clear that TR Constructions cannot enter into a new Agreement with its employees that operates to the exclusion of the present Agreement during its nominal life.

[28] However, the CFMMEU also acknowledged in its oral submissions that if the Commission finds sub clause 2.2 can be deleted by means of an undertaking then the remaining issues disappear. 23

[29] Undertaking 2 – Clause 9 – The CFMMEU next has concerns about clause 9 of the Agreement and, in particular, the potential for an employee to be paid less under the flat rate or annualised salary arrangements than would be the case under the entitlements contained in the Award. This could occur, in particular, in circumstances where an employee worked additional overtime hours. However, it also made reference again to the decision in Main People, and the undertaking developed in that matter. This required a reconciliation to be carried out at each pay period. The CFMMEU acknowledged in response that if something similar were put in place in this case then “…it looks like that would remedy the problem” 24 otherwise highlighted in its submissions.

[30] Undertaking 3 – Locomotive Drivers – the CFMMEU submits that this undertaking, which proposes to exclude locomotive drivers, again acts to change the coverage of the Agreement and therefore cannot be accepted. It submits that locomotive drivers are currently covered by the Agreement because it cannot be read as being limited only to the specified classifications referred to, and the reference to Mining Level Classifications 4 – 6, by implication, encompass locomotive drivers. In this context the failure to include the locomotive allowance raises an issue in terms of compliance with the better off overall test.

[31] Undertaking 4 – Wage Rates – The CFMMEU submits that the wage rates set out in the proposed undertaking are based on the current wage rates in the Mining Industry Award 2010, inclusive of the industry allowance and with an additional 50 cents per hour added. It continues to submit that this undertaking, together with the others that have now been proposed, requires the Commission to consider whether they jointly constitute “substantial change” to the Agreement that was originally voted on by the employees. It continues to submit that the undertakings cannot “involve a wholesale reshaping of an agreement that’s already been made,” 25 and refers to the decision in AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833 in this context.

[32] It also has concerns about the provisions in the Agreement dealing with future wage increases, and submits that it is not appropriate for the Agreement to simply provide that the minimum rates provided to employees will at all times be not less than what the Award provides for. The BOOT instead requires that employees be better off at all times compared to the entitlements in the Award.

Consideration

[33] As indicated at the outset the Full Bench in the earlier appeal decision concluded that “Clause 2.2 is drafted in terms that lack clarity.” 26 It continued to indicate that if the intent of the sub clause was to restate the intent of s.58 then it did not accurately do so. It continued to state:

“Accordingly, on one view, the clause does purport to allow an “opt out” contrary to the provisions of the FW Act.” 27

[34] However, as indicated previously the Full Bench also stated at [33]:

“We think that in all the circumstances it is preferable not to grant permission to appeal in relation to this issue. As earlier stated, as a result of the appeal being upheld in respect of ground 5 of the appeal, the application for approval of the Agreement will have to be heard afresh and re-determined. That will give the Respondent an opportunity to address any concerns that arise with respect to this clause through the provision of an undertaking. That makes it unnecessary to resolve the issue now. Permission to appeal is therefore refused in relation to ground 8.” 28

[35] In coming to this conclusion I am satisfied at the outset that the Full Bench was not necessarily ruling out the possibility of the deficiencies it had identified in sub clause 2.2 being dealt with by means of an undertaking. It can also be noted that it did not make specific reference to any such undertaking raising problems related to changes to the coverage of the Agreement in the way the CFMMEU now contends. However, it is also acknowledged that the Full Bench may not have directly turned its attention to this consideration.

[36] The CFMMEU relies on the decision in Main People in support of its submission that the undertaking to delete sub clause 2.2 changes the coverage of the Agreement, and therefore it must represent a “substantial change” to the Agreement, given the fundamental nature of the coverage clause in an enterprise agreement. It is acknowledged in response that the Full Bench came to the following conclusion in Main People at [35]:

“The scope of coverage of an enterprise agreement is one of its fundamental features. The coverage provision of an agreement serves to identify the class of persons who will be entitled to its benefits while it is in operation. The importance of an agreement’s coverage is signified by the fact that, under the FW Act, s.186(3) requires the group of employees covered by the agreement to be fairly chosen. For that reason an undertaking which purports to alter the coverage of an enterprise agreement by excluding classes of persons who, on the face of the agreement, would be covered by it, will always be likely to be a significant change. 29

[37] However, the circumstances in Main People were different from those in the present matter. As the Full Bench noted in Main People the issue in that case was about the breadth of the classifications set out in the Agreement, and the geographical scope of its coverage, which meant that its scope arguably extended beyond the underlying Manufacturing and Associated Industries and Occupations Award 2010. The proposed undertaking accordingly sought to wind back the scope of the coverage of the Agreement to that of the Award. That is a very different situation to the present matter.

[38] The coverage of the proposed Agreement in this case is set out in sub clause 2.1(b). It is not necessary to set out the terms of that sub clause at this point. Sub clause 2.2 then follows. It states:

“Any future project or site specific Agreement entered into under the Fair Work Act 2009 (FW Act) by the Company or by any Joint Venture or similar business arrangement of which the Company is a part, will cover and apply to the Company and any employees of that particular project or site to the exclusion of this Agreement.” 30

[39] It is acknowledged that the sub clause is potentially at odds with both ss.58 and 194(ba) of the Act, and is therefore potentially unlawful. However, I am not satisfied that the sub clause deals specifically with the coverage of the Agreement. That is instead dealt with in sub clause 2.1(b). Sub clause 2.2 does not change the scope of that coverage. It instead purports to set out when employees will no longer continue to be covered by the Agreement, albeit in a manner that is perhaps not in compliance with the Act and is therefore unlawful. However, I am not satisfied that the undertaking must be rejected because it represents a “substantial change” to a fundamental term of the Agreement. I am satisfied instead that it can be accepted on the basis that it represents a sensible response to the problems identified by the Full Bench in the earlier appeal decision in regard to sub clause 2.2.

[40] I am also satisfied that the issues raised in response to the second undertaking proposed by TR Constructions can be dealt with relatively briefly. It now proposes to amend the undertaking previously foreshadowed in order to provide for regular reconciliations at each pay period in circumstances where employees have entered into flat rate or annualised pay arrangements. This reflects the approach accepted by Gostencnik DP in Main People. The CFMMEU indicated in its submissions that this would appear to be an acceptable approach. I share that view.

[41] The next matter concerns the fact that the Agreement does not provide for the locomotive drivers allowance contained in the Mining Industry Award 2010. The CFMMEU submits that an issue accordingly arises in terms of satisfaction with the requirements of the BOOT. The relevant allowance is contained at sub clause 14.2(d) of the Award and provides that, “Employees who are assessed as being mainline competent and appointed by their employer as Locomotive Drivers and required to operate on the mainline will receive a rail allowance of 30% of the ordinary hourly base rate of pay specified in this award.” 31

[42] The CFMMEU acknowledges that the Agreement does not make specific reference to the classification of locomotive drivers. However, it submits this role is encompassed within the existing classifications set out in clause 6 of the Agreement. It continues to submit that the undertaking, which is in the following terms, “The agreement does not cover locomotive drivers,” 32 acts to change the original coverage of the Agreement. It therefore represents a “substantial change” to the Agreement and again cannot be accepted on that basis.

[43] TR Constructions submits in response that the Agreement was never intended to cover locomotive drivers as it is not involved in rail operations and has no intention of being so involved. Therefore, there is no issue in terms of the BOOT, and the undertaking does not represent a change to the coverage of the Agreement because it was never intended to cover employees in that classification.

[44] The process of putting in place an enterprise agreement is intended, in large part, to be about putting in place terms and conditions of employment that are best suited to the needs of the particular business and its employees. If TR Constructions does not engage in rail operations and does not employ locomotive drivers, and has no intention of ever doing so, then there is no reason why it would develop an enterprise agreement that provided for entitlements covering that work. Therefore, given that the Agreement was never intended to cover that work the undertaking simply provides confirmation of that situation, rather than being a change to what was originally intended. It is also noted that the classification structure set out in clause 6 of the Agreement sets out descriptors at each classification level. There is nothing in those descriptors that contains any reference to rail operations, or the specific role of locomotive driver. The F17 Employer’s Statutory Declaration also indicates that the Agreement is intended to cover a relatively small number of 8 employees whose roles can obviously be readily identified. This can be contrasted with an Agreement which is intended to cover a significant number of employees, and where the potential might exist for the work performed to diversify into other areas that were not anticipated at the time the Agreement was entered into.

[45] It can also be noted that one way of responding to the concerns of the CFMMEU in this context would be to obtain an undertaking from TR Constructions that it apply the terms in sub clause 14.2(d) of the Award in the event that it employees locomotive drivers. However, I am satisfied that this is unnecessary, and it is instead appropriate to simply deal with the matter on the basis that the Agreement does not cover the work of locomotive drivers, and was never intended to do so.

[46] The next issue of significance concerns the undertaking proposed in regard to amended wage rates and the suggestion in response from the CFMMEU that it, and the other proposed undertakings, constitute “substantial change to the original Agreement that was voted on and approved by the 8 employees. The CFMMEU also refers to the Full Bench decision in Re AKN Pty Ltd t/a Aitken Crane Services[2015] FWCFB 1833 in this context.

[47] TR Constructions submits in response that the undertakings respond to the issues identified by the Full Bench in the earlier appeal decision, and they otherwise provide sensible clarification and confirmation about the original intention of the Agreement that was voted on by the employees.

[48] The Full Bench decision in Construction, Forestry, Mining and Energy Union v KAEFER Integrated Services Pty Ltd was also required to consider whether a series of proposed undertakings resulted in substantial changes to the Agreement. It concluded in response:

“[40] In our view, simply increasing the quantum of various benefits will not ordinarily result in “substantial changes” for the purposes of s 190(3). It seems to us that the legislative concern is to avoid imposing on employees arrangements that they have not approved; employees are not likely to object to higher monetary amounts. The position might be more complex in relation to the reintroduction through undertakings of award-based benefits that were otherwise excluded by the agreement, if this were to have a significant bearing on working arrangements. However, this does not arise in the present matter.

[41] Section 190(3) does not permit undertakings that result in the wholesale reshaping of the agreement, such that it bears no resemblance to the pre-undertaking agreement that was approved by employees. 16 In considering the application of s 190(3), each case will turn on its own circumstances. However, in the present case, we do not consider that the undertakings provided to date have resulted in substantial changes.” 33

[49] This matter also involves an undertaking that provides additional monetary entitlements to employees. I am also satisfied that the other undertakings provide clarification about the parties’ original intentions and do not, for example, involve the introduction of Award based or other benefits that were not in contemplation when the Agreement was voted on. I am satisfied in response that the undertakings do not represent “substantial change” to the terms of the original Agreement.

[50] The next issue concerns the fact that the Agreement does not contain specific provision for particular wage increases during its life. However, it does contain provision for rates to be reviewed in sub clauses 6.5 and 6.6. Sub clause 6.5 states in part, “Pay rates will be reviewed by the Employer on an annual basis starting on the second year anniversary of the approval of this Agreement. The Employer will review rates of pay and allowances annually to ensure that the rates above meet the Award obligations including the increases due to the Fair Work Commission’s National Wage Decision.” 34 Sub clause 6.6 also provides that expense related allowances will be reviewed on an annual basis and will be “…increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.”35

[51] Sub clause 8.5 also states, “The Company will ensure that an Employee remains better off overall (based on the Employee’s overall terms and conditions of employment) when compared against the relevant Award that would otherwise apply but for the operation of this Agreement.” 36

[52] I am satisfied in response that these terms provide a mechanism to deliver increases to wage rates and allowances during the life of the Agreement, as well as confirming the intention of the parties that the employees covered by the Agreement will at all times, at the very least, be better off when compared to the terms of the underlying Mining Industry Award 2010.

Conclusion

[53] It is noted, in conclusion, that the employee bargaining representative named in the F16 Application also attended the hearing. He did not seek to make submissions but did indicate in response to a question from the Commission that the employees to be covered continued to support the application for approval of the Agreement. 37

[54] TR Constructions has already proposed certain undertakings in support of the Agreement being approved. In addition, it now proposes that the undertaking in relation to clause 9 be amended to provide for a specific reconciliation mechanism. It has also proposed a further undertaking relating to the term in the Agreement dealing with abandonment of employment. I now intend to defer any further consideration of this application until those further signed undertakings are received from the Applicant, including the additional amended undertakings referred to above. It would assist if this can be done within 7 days of the date of this decision. It will then be necessary to review the specific terms of those undertakings. However, subject to that review I am satisfied that the Agreement will then be able to be approved for the reasons set out in this decision. However, at this point I defer any further consideration of the application until such time as those signed undertakings are provided to the Commission.

COMMISSIONER

Appearances:

D White for the Applicant.

A Thomas for the Construction, Forestry, Maritime, Mining and Energy Union.

Hearing details:

2018.

Perth and Sydney (video hearing):

May 3.

Printed by authority of the Commonwealth Government Printer

<PR607834>

 1   [2017] FWCA 325.

 2   Construction, Forestry, Mining and Energy Union v TR Construction Services Pty Ltd [2017] FWCFB 1928.

 3 Ibid [32].

 4 Ibid [33].

 5 Ibid [37].

 6   Construction, Forestry, Maritime, Mining and Energy Union’s submissions re right to be heard, filed 2 May 2018.

 7   MA000011.

 8   Construction, Forestry, Maritime, Mining and Energy Union’s submissions re right to be heard, filed 2 May 2018, [22].

 9   Transcript, 3 May 2018, PN19.

 10   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd[2014] FWCFB 7940 (‘Collinsville’).

 11   Transcript, 3 May 2018, PN27.

 12   Undertakings, filed 14 February 2018, p 1.

 13   Ibid.

 14   Undertakings, filed 14 February 2018 p 1.

 15   Fair Work Act 2009 (Cth) s 190(3)(b).

 16   [2017] FWCFB 5630.

 17   [2017] FWCFB 38 (‘Iplex’).

 18   Transcript, 3 May 2018, PN138.

 19   Proposed TR Construction Services Pty. Ltd. Enterprise Agreement 2016, [26.8].

 20   Transcript, 3 May 2018, PN145-8.

 21   Construction, Forestry, Maritime, Mining and Energy Union’s submissions re undertakings, filed 2 May 2018.

 22   Main People[2015] FWCFB 4467, [35].

 23   Transcript, 3 May 2018, PN179.

 24   Transcript, 3 May 2018, PN187.

 25   Transcript, 3 May 2019, PN233.

 26   Construction, Forestry, Mining and Energy Union v TR Construction Services Pty Ltd [2017] FWCFB 1928, [32].

 27   Ibid.

 28 Ibid [33].

 29   Main People[2015] FWCFB 4467, [35].

 30   Proposed TR Construction Services Pty. Ltd. Enterprise Agreement 2016, [2.2].

 31   MA000011, [14.2].

 32   Transcript, 3 May 2018, PN106.

 33   [2017] FWCFB 5630, [40]-[41].

 34   Proposed TR Construction Services Pty. Ltd. Enterprise Agreement 2016, [6.5].

 35   Ibid [6.6].

 36   Ibid [8.5].

 37   Transcript, 3 May 2018 PN151–PN154.