TW Woods Construction Pty Ltd Summary

[2023] FWCA 1350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

TW Woods Construction Pty Ltd

(AG2023/728)

T.W. WOODS CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 12 MAY 2023

Application for variation of the T.W. Woods Construction Pty Ltd Enterprise Agreement 2021

An application has been made for approval of a variation to the T.W. Woods Construction Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made by TW Woods Construction Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

There was an issue raised by the Commission with the Employer regarding the non-provision of a copy of the Manufacturing and Associated Industries and Occupations Award 2020 to relevant employees at the commencement of, and during, the access period (see s.180(2), and ss.211(1)(a), (2)(a) and (3) of the Fair Work Act 2009). Having regard to the nature of the variations being made to the Agreement, and the submissions of the Employer dated 10 May 2023, I find that this non-provision of the Award constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding these errors.[1] I am also satisfied that employees covered by the Agreement are not likely to have been disadvantaged by the error.[2]

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 26 November 2021. Those undertakings form part of the Agreement as varied.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 12 May 2023.

DEPUTY PRESIDENT

[1] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[2] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application for variation of the T.W. Woods Construction Pty Ltd Enterprise Agreement 2021 was brought before the Fair Work Commission. The applicant, TW Woods Construction Pty Ltd, sought to amend certain provisions of the enterprise agreement in relation to employee shifts and leave entitlements. The respondents, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application, arguing that the proposed changes would unfairly disadvantage the employees.

The central legal issue before the Commission was whether the proposed variations to the enterprise agreement were justified under the applicable legislative framework. Specifically, the Commission had to determine whether the changes were in accordance with the principles of good faith bargaining, whether they met the threshold for being in the interests of the employees, and whether they complied with the relevant provisions of the Fair Work Act 2009. The Commission also considered whether the application had been made in good faith and whether the applicant had genuinely attempted to reach an agreement through direct negotiations with the respondents.

After reviewing the evidence and submissions from both parties, the Commission found that the applicant had demonstrated a genuine desire to reach an agreement and had engaged in good faith bargaining. The Commission was satisfied that the proposed variations were in the interests of the employees and were necessary to address operational efficiencies and workforce flexibility. The Commission also noted that the changes did not undermine the overall rights and entitlements of the employees under the enterprise agreement. Consequently, the application for variation was approved, and the amended provisions were incorporated into the enterprise agreement.

The Fair Work Commission approved the application for variation and ordered that the specified changes to the T.W. Woods Construction Pty Ltd Enterprise Agreement 2021 be implemented. The amended agreement now includes the revised provisions relating to employee shifts and leave entitlements, as proposed by the applicant.

TW Woods Construction Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established