Acciona Construction Australia Pty Ltd

[2025] FWCA 2326

[2025] FWCA 2326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Acciona Construction Australia Pty Ltd

(AG2025/1941)

ALKIMOS SEA-WATER ALLIANCE ONSHORE UNION GREENFIELDS AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 14 JULY 2025

Application for approval of the Alkimos Sea-Water Alliance Onshore Union Greenfields Agreement 2025.

1. Acciona Construction Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Alkimos Sea-Water Alliance Onshore Union Greenfields Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. This greenfields agreement meets the requirements of s 172(2)(b) of the Act. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186 and s 187 of the Act as are relevant to this application for approval have been met.

1. In accordance with s 187(5)(a) of the Act, I am satisfied that the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union; the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and the Construction, Forestry and Maritime Employees Union (together, the Organisations) 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. On Tuesday 8 July 2025, the Applicant filed an application under s 586 of the Act to rectify an inadvertent error made in drafting the Agreement in relation to clause 17 where ‘the Plumbing Licensing Allowance that was agreed during bargaining was inadvertently left out’. An amended copy of the Agreement incorporating the missing term and correcting the numbering of clauses was subsequently filed. The Organisations confirmed they consented to the amendments sought. I consider it appropriate in the circumstances to allow a correction or amendment of the application and do so pursuant to s 586(a) of the Act.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 41.5(a) of provides that ‘as soon as reasonably practicable advise the Employer of their inability to attend for work and the estimated duration of the absence; provided that such advice, other than in extraordinary circumstances shall be given to the Employer within one (1) hour of the commencement of absence’. The Agreement clause appears to provide a more stringent notice requirement than what is permitted by s 107(2)(a) of the Act. Clause 41.5(a) appears to emphasise that employees shall give notice within 1 hour of commencement of absence as opposed to s 107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable, which may be a time after the leave has started.

(b)Clause 36 provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies; however, it appears to be silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s 104(1)(b) and (c) of the Act.

(c)Clause 37 sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss 117–123 of the Act.

1. However, I am satisfied that under clause 4.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Pursuant to ss 53(2)(b) and 201(2A) of the Act, I note the Agreement was made with the Organisations and that the Agreement covers them.

1. The Agreement was approved on 14 July 2025 and, in accordance with s 54, will operate from 21 July 2025. The nominal expiry date of the Agreement is 14 July 2029.

COMMISSIONER

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Annexure A