Tunnel Holdings Pty Ltd Summary

[2016] FWCA 714

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tunnel Holdings Pty Ltd T/A Sydney Harbour Tunnel

(AG2015/7757)

TUNNEL HOLDINGS AND AUSTRALIAN WORKERS UNION (AWU)

OPERATIONS COLLECTIVE WORKPLACE AGREEMENT 2015

Manufacturing and associated industries

COMMISSIONER ROE

MELBOURNE, 3 FEBRUARY 2016

Application for approval of the Tunnel Holdings and Australian Workers Union (AWU)

Operations Collective Workplace Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the

Tunnel Holdings and Australian Workers Union (AWU) Operations Collective Workplace

Agreement 2015 (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] The Applicant has provided written undertakings. A copy of the undertakings is

attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment

to any employee covered by the Agreement and that the undertakings will not result in

substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the

requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have

been met. The Agreement does not cover all of the employees of the employer, however,

taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of

employees was fairly chosen.

[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 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) I note that the Agreement covers the organisation.
[2016] FWCA 714

[7] The Agreement was approved on 3 February 2016 and, in accordance with s.54, will

operate from 10 February 2016. The nominal expiry date of the Agreement is 3 February

2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

[2016] FWCA 714

Annexure A

CaseChat Overview and Summary

In Tunnel Holdings Pty Ltd, the Fair Work Commission considered an application for the approval of the Tunnel Holdings and Australian Workers Union (AWU) Operations Collective Workplace Agreement 2015. The applicant, Tunnel Holdings Pty Ltd, trading as the Sydney Harbour Tunnel, sought the approval of this agreement under section 185 of the Fair Work Act 2009. The agreement, a single enterprise agreement, was proposed to cover a group of employees, although not all employees of the employer. The AWU, a bargaining representative for the agreement, indicated its desire for the agreement to cover it, as required by section 183 of the Act.

The central legal issues before the Commission were whether the agreement met the statutory requirements for approval, including compliance with sections 186, 187, 188, and 190 of the Fair Work Act. The Commission also needed to consider the fairness of the employee selection and whether the agreement would cause financial detriment to any employees. Additionally, the Commission had to ensure that the agreement incorporated the model consultation and flexibility terms prescribed by the Fair Work Regulations 2009.

The Commission determined that the agreement satisfied the statutory requirements for approval. Commissioner Roe found that the undertakings provided by Tunnel Holdings Pty Ltd would not cause financial detriment to any employee and would not result in substantial changes to the agreement. The Commissioner was also satisfied that the group of employees covered by the agreement was fairly chosen, taking into account the factors outlined in sections 186(3) and (3A) of the Act. The model consultation and flexibility terms were incorporated into the agreement as required by sections 205(2) and 202(4) of the Act, respectively. Consequently, the Commission approved the agreement, which was to operate from 10 February 2016, with a nominal expiry date of 3 February 2019.

Tunnel Holdings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established