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…

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.

Continue reading TR Construction Services Pty Ltd

Details

AGLC: TR Construction Services Pty Ltd [2018] FWC 3274
Case: [2018] FWC 3274
Decision Date: 6 JUNE 2018

CaseChat Overview and Summary

TR Construction Services Pty Ltd recently appeared before the Fair Work Commission, seeking approval of their 2016 Enterprise Agreement. The dispute involved the terms of employment and conditions for their employees, which the company proposed to update through this agreement. The commission was tasked with determining whether the agreement met the legal requirements and if it was fair and reasonable for the employees involved.

The primary legal issue before the commission was whether the proposed agreement complied with the Fair Work Act 2009, including provisions relating to employee entitlements, dispute resolution mechanisms, and procedural fairness. The commission needed to assess if the agreement provided genuine benefits to the employees and if the negotiation process was conducted in good faith. The company argued that the agreement was beneficial and fair, while the employees' representatives contended that certain terms did not adequately protect their interests.

The commission considered the evidence presented by both parties, including the negotiation process and the specific terms of the agreement. It found that while the proposed agreement included provisions that were beneficial to the employees, such as increased pay rates and improved working conditions, some clauses could be seen as disadvantaging certain groups. The commission ultimately determined that the agreement, with minor modifications, met the statutory requirements and was fair and reasonable. The modifications primarily involved adjusting some of the contentious clauses to better align with the interests of the employees.

The final orders of the commission included the approval of the 2016 Enterprise Agreement, subject to the specified modifications. This decision ensured that the agreement was legally sound and fair to all parties involved, thereby providing a clear framework for future employment relations within TR Construction Services Pty Ltd.

Orders