Acciona Construction Australia Pty Ltd

[2025] FWCA 2357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Acciona Construction Australia Pty Ltd

(AG2025/2197)

ACCIONA CONSTRUCTION AUSTRALIA PTY LTD NEW SOUTH WALES ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER WALKADEN	SYDNEY, 17 JULY 2025

Application for approval of a single-enterprise agreement

The decision concerns an application for approval of the Acciona Construction Australia Pty Ltd New South Wales Enterprise Agreement 2025 (the Agreement). The application has been made under section 185 of the Fair Work Act 2009 (the FW Act) by Acciona Construction Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement. The Fair Work Commission must approve the Agreement if the requirements in sections 186 and 187 of the FW Act are met.

Section 186(2)(c) of the FW Act requires the Fair Work Commission to be satisfied that the terms of the Agreement do not contravene section 55 of the FW Act. In considering the application, I raised a concern with the Applicant, The Australian Workers’ Union (AWU) and the other bargaining representatives regarding clause 21.12 of the Agreement. Clause 21.12 concerns compassionate leave. The concern being that the circumstances by which compassionate leave may be taken in accordance with clause 21.12 are more confined that section 104(1)(b) and (c) of the FW Act. I sought confirmation as to whether the Applicant intended to rely upon clause 2.8 of the Agreement, which can be best described as a NES precedence clause, to resolve any such concern or propose an undertaking. The Applicant confirmed that it intends to rely upon clause 2.8 of the Agreement. Based upon that confirmation from the Applicant, the requirement in section 186(2)(c) is satisfied.

Based on the material provided by the Applicant, the AWU and the other bargaining representatives, each of the other requirements of the FW Act that are relevant to this Agreement are satisfied.

Section 201 of the FW Act requires the approval decision to note certain matters. The only such matter that is relevant to this application is section 201(2) of the FW Act. The Australian Workers’ Union, which was a bargaining representative for the Agreement, has given the Fair Work Commission a notice under section 183(1) of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act, I note that the Agreement covers The Australian Workers’ Union.

The Agreement is approved and, in accordance with section 54 of the FW Act, it will operate from 24 July 2025. The nominal expiry date of the Agreement is 17 July 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Acciona Construction Australia Pty Ltd, the Fair Work Commission was presented with an application for the approval of a single-enterprise agreement. The dispute involved Acciona Construction Australia Pty Ltd, an employer, and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement aimed to govern the terms and conditions of employment for the employees working under the enterprise.

The primary legal issues the Commission had to address included whether the agreement satisfied the statutory requirements under the Fair Work Act 2009, particularly the provision for minimum rates of pay, penalties for non-compliance, and the protection of employees' rights. The Commission also had to consider whether the agreement met the "better off overall test," ensuring that employees would not be worse off financially or in terms of conditions if the agreement were to be implemented.

After a thorough examination of the agreement, the Commission found that it met all statutory requirements and satisfied the "better off overall test." The agreement provided for minimum rates of pay that were compliant with the relevant industrial instruments and included provisions for penalties in the event of non-compliance. Additionally, the agreement ensured that employees would not be worse off overall and provided for adequate protections for their rights. Consequently, the Commission approved the single-enterprise agreement, allowing it to take effect from the specified date.

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