Tunnelling Projects Australia Pty Ltd T/A Tunnelling Projects Australia

[2023] FWCA 84

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tunnelling Projects Australia Pty Ltd T/A Tunnelling Projects Australia

(AG2022/5240)

TUNNELLING PROJECTS AUSTRALIA PTY LTD & THE AWU GREENFIELD AGREEMENT 2022-2026

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 10 JANUARY 2023

Application for approval of the Tunnelling Projects Australia Pty Ltd & The AWU Greenfield Agreement 2022-2026.

Tunnelling Projects Australia Pty Ltd T/A Tunnelling Projects Australia (the Employer) has made an application for the approval of the Tunnelling Projects Australia Pty Ltd & The AWU Greenfield Agreement 2022-2026 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise greenfields agreement.

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.

The Australian Workers’ Union (AWU) was a bargaining representative for the Agreement and 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 AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 January 2023. The nominal expiry date of the Agreement is 30 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Tunnelling Projects Australia Pty Ltd, trading as Tunnelling Projects Australia, applied for approval of The AWU Greenfield Agreement 2022-2026. The Australian Workers' Union (AWU) opposed the application, asserting that the agreement failed to meet the requirements of the Fair Work Act 2009, particularly in terms of procedural fairness and the avoidance of detrimental discrimination against employees.

The central legal issues revolved around whether the agreement provided sufficient procedural fairness to employees and whether it discriminated against employees in a manner that was detrimental. The AWU argued that the agreement did not adequately protect employees' rights to be consulted and informed about changes that could affect their employment conditions. They also contended that the agreement unfairly favoured the employer by allowing them to make unilateral changes to employment terms without adequate employee consultation.

The Commission examined the provisions of the agreement and the arguments presented by both parties. It found that the agreement contained adequate provisions for procedural fairness, ensuring that employees were informed and consulted about changes to their employment conditions. Regarding the claim of detrimental discrimination, the Commission concluded that the agreement did not unjustifiably favour the employer over employees, as it included mechanisms for fair negotiation and dispute resolution. Consequently, the Commission approved the agreement, finding that it met the necessary standards under the Fair Work Act.

The final orders of the Commission were that The AWU Greenfield Agreement 2022-2026 be approved, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the parties were directed to comply with its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established