Acciona Construction Australia Pty Ltd T/A Acciona Construction Australia Pty Ltd

[2022] FWCA 118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Acciona Construction Australia Pty Ltd T/A Acciona Construction Australia Pty Ltd

(AG2021/8909)

Acciona Construction Australia Pty Ltd South Australia Enterprise Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 14 JANUARY 2022

Application for approval of the Acciona Construction Australia Pty Ltd South Australia Enterprise Agreement 2021.

Acciona Construction Australia Pty Ltd (the Employer) has made an application for the approval of the Acciona Construction Australia Pty Ltd South Australia Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement lodged contained an error at Clause 44.1(1)(d). On 31 December 2021 the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that is appropriate to do so pursuant to s.586 of the Act.

The Australian Workers’ Union (AWU) and Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were bargaining representatives for the Agreement and has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the AWU and CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 January 2022. The nominal expiry date of the Agreement is 14 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Acciona Construction Australia Pty Ltd, trading as Acciona Construction Australia Pty Ltd, sought approval for their proposed enterprise agreement, the South Australia Enterprise Agreement 2021. The dispute arose as the union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union, lodged objections to the proposed agreement on the basis that it did not meet the requirements of the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement contained all the mandated terms and conditions of employment as stipulated by the Act, including the requirement for "protected actions" and "no disadvantage or detriment" provisions. The union argued that the proposed agreement failed to include these critical provisions, which are essential for protecting employees' rights to engage in protected industrial action and to ensure they do not suffer any detriment for doing so.

The Commission considered the provisions of the Fair Work Act and the importance of maintaining a balance between the rights of employers and employees. It examined the specifics of the proposed agreement, including the "protected actions" clause, which allows employees to engage in lawful industrial action without fear of retribution. The Commission found that while the agreement contained provisions that addressed some aspects of the protected actions, it did not fully comply with the statutory requirements. Consequently, the Commission did not approve the agreement, noting that the absence of a comprehensive "protected actions" clause was a significant deficiency.

The Commission ordered that the proposed agreement not be approved and directed the parties to negotiate further to address the deficiencies identified. The Commission emphasised the need for the agreement to include clear and comprehensive provisions that protect employees' rights to engage in lawful industrial action and to ensure there is no disadvantage or detriment to employees for doing so. The decision underscores the importance of adhering to statutory requirements when drafting enterprise agreements to ensure they are fair and compliant with the law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established