DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Tunnel Holdings Pty Ltd T/A Sydney Harbour Tunnel
(AG2018/5999)

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 13 MARCH 2019

Application for approval of the Tunnel Holdings and Australian Workers Union (AWU) Operations Collective Workplace Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Tunnel Holdings Pty Limited & Australian Workers Union (AWU) Operations Tunnel Controllers & Tunnel Controllers’ Assistants Enterprise Agreement 2018 (the Agreement).

[2] The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tunnel Holdings Pty Ltd. The Agreement is a single enterprise agreement.

[3] 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.

[4] 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.

[5] 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.

[6] The AWU 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.

[7] I observe that the following provisions are potentially inconsistent with the National Employment Standards (NES) in respect of Trainee employees:

• Clause 27 – Redundancy.

However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 March 2019. The nominal expiry date of the Agreement is 31 August 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tunnel Holdings Pty Ltd, trading as the Sydney Harbour Tunnel, sought approval for the Tunnel Holdings and Australian Workers Union (AWU) Operations Collective Workplace Agreement 2018 in the Fair Work Commission. The dispute centered around the terms and conditions of employment within the Sydney Harbour Tunnel operations, including issues related to the agreement's provisions concerning wages, conditions, and the overall fairness of the proposed workplace agreement. The Fair Work Commission was tasked with assessing whether the agreement was in the best interests of the employees and whether it complied with the Fair Work Act 2009.

The legal issues before the Fair Work Commission involved determining whether the proposed agreement provided fair and reasonable terms for the employees, including adequate wage provisions, reasonable working conditions, and whether it met the statutory requirements for approval. The Commission needed to consider if the agreement was genuinely negotiated and if it provided for fair and efficient industrial relations within the Sydney Harbour Tunnel operations. Additionally, the Commission had to ensure that the agreement did not unfairly disadvantage any party and was consistent with the principles of the Fair Work Act.

In reaching its decision, the Fair Work Commission examined the negotiation process, the fairness of the proposed terms, and the compliance of the agreement with the statutory requirements. The Commission found that the agreement was genuinely negotiated and that the terms were fair and reasonable for the employees. The Commission noted that the proposed agreement met the legislative criteria for approval and would facilitate effective industrial relations within the Sydney Harbour Tunnel. Consequently, the Fair Work Commission approved the Tunnel Holdings and Australian Workers Union (AWU) Operations Collective Workplace Agreement 2018, recognising it as being in the best interests of the employees and compliant with the Fair Work Act 2009.

The Fair Work Commission's final order approved the Tunnel Holdings and Australian Workers Union (AWU) Operations Collective Workplace Agreement 2018, effective from the date of the decision. This approval ensures that the agreed terms and conditions for the employees of the Sydney Harbour Tunnel operations are legally binding and enforceable under the Fair Work Act 2009.

Tunnel Holdings Pty Ltd T/A Sydney Harbour Tunnel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established