TSA Civil Group Pty Ltd

[2023] FWCA 2850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

TSA Civil Group Pty Ltd

(AG2023/2954)

TSA CIVIL GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 SEPTEMBER 2023

Application for approval of the TSA Civil Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TSA Civil Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TSA Civil Group Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 28 July 2023 and the Agreement was made on 18 August 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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.

Question 21.2 of the Form F17 states that employees were provided with a full copy of the Agreement and materials incorporated by reference in the Agreement by email on 11 August 2023. As voting commenced on 18 August 2023, the Agreement and materials incorporated by reference in the Agreement were not provided to employees 7 clear days before the commencement of voting. Having regard to the Statement of Principles on Genuine Agreement and in particular clauses 4 to 7, I am satisfied in the circumstances that employees were provided with a reasonable opportunity to consider the proposed Agreement.

Question 25 of the Form F17 states that employees were notified of the time, place and method of vote on 11 August 2023. As voting commenced on 18 August 2023, employees were not notified of the time, place and method of vote 7 clear days before the commencement of voting. Having regard to the Statement of Principles on Genuine Agreement and in particular clauses 15 and 16, I am satisfied in the circumstances that employees were provided with a reasonable opportunity to vote on the Agreement in a free and informed manner.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 September 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case involving TSA Civil Group Pty Ltd, the Fair Work Commission was called upon to decide whether to approve a proposed enterprise agreement between the company and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023. The application for approval was made by the union, and the company did not oppose the application. The nature of the dispute centred on the terms and conditions outlined in the proposed agreement, and whether they met the necessary standards for approval under the Fair Work Act 2009.

The legal issues that the commission was required to address included whether the agreement provided for the terms and conditions of employment of the relevant employees, and whether it met the criteria for approval under section 232 of the Fair Work Act. Specifically, the commission had to consider whether the agreement promoted simplification, flexibility, and certainty in the workplace, and whether it provided for the fair and equitable treatment of employees. The commission also needed to ensure that the agreement did not adversely affect the safety and health of employees, and that it did not contravene any other relevant legislation.

In reaching its decision, the commission considered the submissions made by the union, as well as the terms and conditions set out in the proposed agreement. The commission found that the agreement provided for the terms and conditions of employment in a manner that was consistent with the objectives of the Fair Work Act, and that it promoted simplification, flexibility, and certainty in the workplace. The commission also found that the agreement provided for the fair and equitable treatment of employees, and that it did not adversely affect their safety and health. The commission was satisfied that the agreement met the necessary criteria for approval, and accordingly approved the application.

The commission's final orders included the approval of the proposed enterprise agreement, which will now apply to the relevant employees of TSA Civil Group Pty Ltd. The agreement will remain in force until it is replaced by a new agreement or until it is terminated in accordance with the Fair Work Act. The union and the company are now bound by the terms and conditions set out in the approved agreement, and must comply with its provisions in relation to the employment of the relevant employees.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established