Tankweld Installations Pty Ltd Trading AS Tankweld Installations

AMWU AND TANKWELD CONSTRUCTION PROJECTS PTY LTD METAL & ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2023-2026

Application for approval of the AMWU and Tankweld Construction Projects Pty Ltd Metal & Engineering On-site Construction Agreement 2023-2026

[1] An application has been made for approval of a single enterprise agreement known as the AMWU and Tankweld Construction Projects Pty Ltd Metal & Engineering On-site Construction Agreement 2023-2026 (the Agreement). The application was made pursuant s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Tankweld Constructions Projects Pty Ltd (employer). The Agreement is a greenfields agreement made pursuant to section 172(2)(b) of the Act between the employer and the Australian Manufacturing Workers Union (AMWU).

[2] The AMWU provided an F21 Declaration in support of the Agreement which expressed the view that the Agreement passed the better off overall test.

[3] Prior to approving the agreement it was necessary to make some additional enquiries of the parties relating to some specific matters, as follows:

1. The dispute resolution clause at clause 33 of the Agreement did not seem to contemplate the rights of employees to represented at all stages in the dispute resolution procedure.

2. There also seemed to be cross referencing errors in clause 33 of the Agreement. Clauses 33.6.1, 33.6.2 and 33.6.4 refer back to clause 33.1.(c), but that clause that did not exist.

3. There was a lack of clarity in the material as to how the Agreement ensured that any trainees engaged by the employer would be better of all. The Agreement was expressed to cover trainees insofar as it was expressed to cover employees engaged in the classifications stipulated at clause 13 of the agreement as well as those in classifications contained in the incorporated award, being the Building and Construction Industry On-site Award 2020. The body of the Agreement provided no rate of pay for trainees but did at clause 27 express a commitment to "providing increased employment opportunities for apprentices and trainees".

[4] The matters referred to at paragraph [3] above were addressed in correspondence with the parties as follows:

1. An undertaking was offered to ensure that employees were able to be represented throughout the dispute resolution procedure.

2. It was agreed that there were typographical errors in the cross referencing in 33.6.1, 33.6.2 and 33.6.4 and it was appropriate that I corrected these errors by way of a variation under section 218A.

3. An undertaking was offered to address the concern regarding the wages for trainees.

[5] A copy of the undertaking is attached in Annexure A. The AMWU was afforded an opportunity to provide its views in relation to the undertaking but did not avail itself of that opportunity. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement and is Annexure A to this decision.

[6] On the basis of the materials provided with Application and since, and subject to the undertaking referred to above, I am satisfied that each of the requirements of ss 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 AMWU and 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 as required by s 187(5)(b).

[7] Pursuant to s 53(2)(b) of the Act I note the Agreement was made with the AMWU and that the Agreement covers that organisation. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 October 2025. The nominal expiry date of the Agreement is 30 June 2026.

[8] As noted above, I have decided to vary the Agreement pursuant to section 218A. There is no doubt that there is a capacity to vary the agreement prior to its approval and in conjunction with the approval decision.[1] The variations that I order are as follows:

(a) In each of clauses 33.6.1 and 33.6.2, the cross reference to clause 33.1(c) is replaced with a cross reference to clause 33.3.

(b) In clause 33.6.4, the cross reference to clause 33.1(c) is replaced with a reference to clause 33.1(b).

These amendments will be reflected in a separate order and will take effect on the date of this decision. A copy of the Agreement as varied is provided with this decision.

[1] BHP Coal Ltd [2023] FWCA 115, Buller Ski Lifts Pty Ltd [2023] FWCA 844, Gippsland NDT Services [2024] FWCA 3838.

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