ACCIONA Construction Australia Pty Ltd

[2024] FWCA 2924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

ACCIONA Construction Australia Pty Ltd

(AG2024/2655)

ACCIONA CONSTRUCTION AUSTRALIA AND AWU & ETU NSW TRANSMISSION ENTERPRISE AGREEMENT 2024 – 2028.

Building, metal and civil construction industries
DEPUTY PRESIDENT ROBERTS	SYDNEY, 9 AUGUST 2024

Application for approval of the ACCIONA Construction Australia and AWU & ETU NSW Transmission Enterprise Agreement 2024 – 2028.

Application for approval of the ACCIONA Construction Australia and AWU & ETU NSW Transmission Enterprise Agreement 2024 – 2028.

An application has been made for approval of an enterprise agreement known as the ACCIONA Construction Australia and AWU & ETU NSW Transmission Enterprise Agreement 2024 – 2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ACCIONA Construction Pty Ltd (the Applicant). The Agreement is a greenfields enterprise agreement.

The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I note clause 2.5d of the Agreement and I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied services Union of Australia (CEPU) and the Australian Workers’ Union (AWU) lodged a Form F21 statutory declaration as required by Rule 33(4) of the Fair Work Commission Rules 2024.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 6 August 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The matter in ACCIONA Construction Australia Pty Ltd involved an application for the approval of the ACCIONA Construction Australia and AWU & ETU NSW Transmission Enterprise Agreement 2024 – 2028. The primary parties involved were ACCIONA Construction Australia Pty Ltd, as the employer, and the Australian Workers' Union (AWU) and the Electrical Trades Union (ETU), as the employee representatives. The dispute centred on whether the enterprise agreement proposed by the parties met the necessary legal standards for approval under the Fair Work Act 2009.

The court had to decide several legal issues, including whether the agreement was a genuine enterprise agreement as defined under section 172 of the Fair Work Act 2009. This required the court to consider whether the agreement was made in good faith and whether it dealt with the terms and conditions of employment of the relevant employees. Additionally, the court examined whether the agreement contained all the mandatory terms prescribed by the Fair Work Act and whether it complied with the provisions of the Act, including provisions relating to minimum rates of pay, penalty rates, and other conditions of employment.

In determining the application, the court reviewed the submissions from both the employer and the unions, as well as the evidence presented. The court found that the agreement was made in good faith and covered the employees' terms and conditions of employment. The court also confirmed that the agreement included all the mandatory terms as prescribed by the Fair Work Act and adhered to the provisions of the Act. Given these findings, the court approved the enterprise agreement, finding it to be fair and reasonable in all the circumstances.

The final orders of the court were to approve the ACCIONA Construction Australia and AWU & ETU NSW Transmission Enterprise Agreement 2024 – 2028, thereby allowing it to be registered and enforced under the Fair Work Act. This decision ensures that the terms of the agreement will govern the employment conditions of the relevant employees for the specified period, providing certainty and clarity for both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established