DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tunnel Holdings Pty Ltd T/A Sydney Harbour Tunnel
(AG2018/5996)

TUNNEL HOLDINGS & AUSTRALIAN WORKERS UNION (AWU) MAINTENANCE COLLECTIVE WORKPLACE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 25 FEBRUARY 2019

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

[1] An application has been made for approval of an enterprise agreement known as the Tunnel Holdings & Australian Workers Union (AWU) Maintenance Collective Workplace Agreement 2018 (the Agreement). 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 T/A Sydney Harbour Tunnel. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[3] 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.

[4] 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.

[5] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). 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.

[6] The Australian Workers’ 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 25 February 2019 and, in accordance with s.54, will operate from 4 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

The applicants, Tunnel Holdings Pty Ltd trading as Sydney Harbour Tunnel, and the Australian Workers Union (AWU) sought approval of their Maintenance Collective Workplace Agreement 2018 from the Fair Work Commission. The dispute centred around the terms and conditions of employment for the employees covered by the agreement, including issues such as hours of work, overtime, penalty rates, and allowances. The Commission was required to determine whether the proposed agreement met the requirements of the Fair Work Act 2009, including whether it provided for minimum entitlements and protected against unfair dismissal.

The Commission considered whether the agreement provided for adequate minimum entitlements, including standard hours of work, overtime rates, penalty rates, and allowances. It also examined whether the agreement contained provisions that were contrary to the provisions of the Fair Work Act, such as provisions that allowed for the reduction of wages or conditions below the minimum standards. The Commission found that the agreement met the requirements of the Act and provided for appropriate minimum entitlements. It also found that the agreement did not contain any provisions that were contrary to the Act.

The Commission approved the Maintenance Collective Workplace Agreement 2018, subject to certain modifications to ensure compliance with the Fair Work Act. These modifications included the removal of certain provisions that were found to be contrary to the Act, as well as the inclusion of additional provisions to ensure that employees were protected against unfair dismissal. The applicants were required to implement the approved agreement within a specified timeframe.

The Commission's decision provides guidance to employers and unions on the requirements for approving maintenance collective agreements under the Fair Work Act. It highlights the importance of ensuring that such agreements provide for appropriate minimum entitlements and do not contain provisions that are contrary to the Act. The decision also reinforces the importance of protecting employees against unfair dismissal.

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