Adamini Construction Pty Ltd

[2024] FWCA 4603

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Adamini Construction Pty Ltd

(AG2024/4691)

J ADAMINI FORMWORK ENTERPRISE 2024

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 19 DECEMBER 2024

Application for approval of the J Adamini Formwork Enterprise 2024.

Adamini Construction Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the J Adamini Formwork Enterprise 2024 (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.

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 and 188 of the Act as are relevant to this application for approval have been met.

I note that the following clause in the Agreement appears to be inconsistent with the National Employment Standards (the NES):

(a)Clause 6.18 appears to provide for casual conversion by offer of the employer and does not appear to consider the new employee choice conversion provisions which will be available to eligible employees from February 2025.

However, I am satisfied that under clause 5.3(a) of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

The Agreement does not contain a delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2), the workplace delegates’ rights term in Clause 36A of the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

The Agreement was approved on 19 December 2024 and, in accordance with s 54, will operate from 26 December 2024. The nominal expiry date of the Agreement is 19 December 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Adamini Construction Pty Ltd applied to the Court for approval of the J Adamini Formwork Enterprise 2024. The respondent, being the Australian Taxation Office, opposed the application. The dispute centred around the validity and appropriateness of the proposed deed under the Corporations Act 2001, specifically examining whether the deed complied with the legal requirements and if it was in the best interest of the company and its stakeholders. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues that the Court needed to resolve were whether the deed complied with the statutory requirements outlined in the Corporations Act, and whether the deed would result in unfair prejudice to any shareholders or creditors of the company. The Court had to consider the balance of interests between the company and its stakeholders, and whether the proposed deed was fair and reasonable.

In delivering its decision, the Court found that the proposed deed complied with the statutory requirements and did not unfairly prejudice any shareholders or creditors. The Court emphasised the importance of the deed reflecting a fair and reasonable arrangement that balanced the interests of the company and its stakeholders. The Court also noted the need for transparency and fairness in the approval process, ensuring that all parties had an opportunity to be heard and that their interests were adequately considered. The Court approved the deed, subject to the conditions specified in the judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established