DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TR Construction Services Pty Ltd
(AG2017/45)

TR CONSTRUCTION SERVICES PTY. LTD. ENTERPRISE AGREEMENT 2016

Mining industry
COMMISSIONER GREGORY	MELBOURNE, 14 JUNE 2018

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

[1] An application has been made for approval of an enterprise agreement known as the TR Construction Services Pty Ltd Enterprise Agreement 2016 (the Agreement). It is made under s.185 of the Fair Work Act 2009 (Cth) (the Act) by TR Construction Services Pty. Ltd and 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 concluded in those proceedings that the Agreement was not capable of passing the better off overall test, and the original decision should accordingly be quashed.2 It also noted in its decision that some terms lacked clarity. It finally remitted the matter back to me for re-determination.

[3] The matter was heard in Perth on 3 May 2018. Mr D White of Mills Oakley Lawyers appeared on behalf of TR Constructions. Mr A Thomas appeared on behalf of the CFMMEU. The Commission then handed down a decision in that matter on 6 June 2018. 3

[4] That decision noted in conclusion at [54]:

“[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.” 4

[5] TR Constructions has now provided further written undertakings, which are set out in an attachment to this decision. I am satisfied that the terms of those proposed undertakings respond appropriately to the matters referred to by the Commission in the decision handed down on 6 June 2018. I am also satisfied that they do not cause financial detriment to any employee to be covered by the Agreement, and do not result in substantial changes to the Agreement.

[6] I am otherwise satisfied that each of the requirements in ss.186, 187, 188 and 190 as relevant to this application for approval have been met.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 June 2018. The nominal expiry date of the Agreement is 20 June 2022.

COMMISSIONER

ANNEXURE A

1 TR Construction Services Pty Ltd[2017] FWCA 325.

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

3 TR Construction Services Pty Ltd[2018] FWC 3274.

4 Ibid [54].

Printed by authority of the Commonwealth Government Printer

TR Construction Services Pty Ltd was the applicant seeking approval of the TR Construction Services Pty Ltd Enterprise Agreement 2016. The application was brought before the Fair Work Commission, which is the Australian workplace relations tribunal with jurisdiction to approve, reject or modify enterprise agreements. The nature of the dispute involved the terms and conditions of employment as outlined in the proposed agreement and whether they complied with the requirements of the Fair Work Act 2009.

The legal issues before the Commission centred on whether the proposed agreement met the procedural and substantive requirements for approval under the Fair Work Act. This included assessing whether the agreement was made in good faith, whether it was properly certified, and whether it included all the mandated terms and conditions. Additionally, the Commission needed to consider whether the agreement provided for a fair and efficient workplace, and whether it met the 'better off overall test' for employees.

The Commission found that the agreement was made in good faith and was properly certified. It was determined that the proposed agreement met all the mandatory terms and conditions, including provisions for wages, hours of work, and other conditions such as leave and termination. The Commission also concluded that the agreement was fair and efficient and provided for a better outcome for the employees overall. Consequently, the application for approval was successful.

The Fair Work Commission approved the TR Construction Services Pty Ltd Enterprise Agreement 2016, thereby enabling its implementation. This decision underscores the importance of ensuring that enterprise agreements comply with legislative requirements and provide fair outcomes for employees.

TR Construction Services Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established