Tunnelling Projects Australia Pty Ltd T/A Tunnelling Projects Australia

[2023] FWCA 986

[2023] FWCA 986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tunnelling Projects Australia Pty Ltd T/A Tunnelling Projects Australia

(AG2023/831)

TUNNELLING PROJECTS AUSTRALIA PTY LTD & THE AWU ETP PROJECT GREENFIELD AGREEMENT 2023-2026

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 5 APRIL 2023

Application for approval of the Tunnelling Projects Australia Pty Ltd & The AWU ETP Project Greenfield Agreement 2023-2026.

1. An application has been made for approval of a greenfields agreement known as the Tunnelling Projects Australia Pty Ltd & The AWU ETP Project Greenfield Agreement 2023-2026 (the Agreement). The application was made by Tunnelling Projects Australia Pty Ltd T/A Tunnelling Projects Australia (the Employer) pursuant to s.185 of the Fair Work Act 2009 (the Act).

1. The Agreement meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of sections 186 and 187 of the Act, as are relevant to this application for approval, have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union (AWU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

1. The Employer has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

1. The Agreement lodged contained referencing errors. On 31 March 2023, the AWU filed the attached amended version of the Agreement correcting the various errors identified and the Employer advised it agrees with the amendments made. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act.

1. I observe that a provision of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 2.7(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the AWU and that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 April 2023. The nominal expiry date of the Agreement is 30 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A