AK Civil & Construction Pty Ltd Summary

[2025] FWCA 1800

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

AK Civil & Construction Pty Ltd

(AG2025/1025)

AK CIVIL & CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT BUTLER	BRISBANE, 30 MAY 2025

Application for approval of the AK Civil & Construction Pty Ltd Enterprise Agreement 2024

AK Civil & Construction Pty Ltd (“the Employer”) has applied for approval of an enterprise agreement known as AK Civil & Construction Pty Ltd Enterprise Agreement 2024 (“the Agreement”). The Application was made under section 185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.

Pre-approval requirements

In explaining the Agreements terms to employees, the Employer provided a document summarising those terms (“the summary document”). The summary document describes casual conversion arrangements. Due to recent legislative reforms, that description may be more restrictive than the arrangements currently provided for in the National Employment Standards (“NES”). The Employer submits the explanation was reasonably consistent with the NES, and undertook to the Commission that all casual employees would be provided with a copy of the Fair Work Information Statement for casuals. If any person was led into error by this part of the summary document, and voted for the Agreement as a consequence, then they are unlikely to have voted differently if the arrangement turned out to be more beneficial for them.

The summary document refers to maximum daily hours which do not appear to have been included in the Agreement. The Employer has provided an undertaking in that regard.

The summary document provides classification matching which is in different terms with that provided in the employer’s declaration (F17). The Employer submits the information in the summary document provides an illustration to employees of the difference in the classification range and rates of pay of the Agreement against the Building and Construction General On-site Award 2020 (“the Award”). I have reviewed the summary document together with the Award and I accept the Employer’s submission in that regard.

Terms of the Agreement

The Agreement provides a delegates’ rights term which is drafted almost identically to the term in clause 36A of the Award, but omits the provisions in paragraphs 36A.7(b) and 36A.8(d). The Employer offered an undertaking that cl 36A of the Award would apply. In light of that undertaking I take it the Employer accepts that the Agreement does not contain a delegates’ rights term that meets the requirements of section 205A of the Fair Work Act. Pursuant to that section, clause 36A of the Award is taken to be a term of the Agreement.

The National Employment Standards

Noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

Conclusion

The Employer has given written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexure A to this decision. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

With the undertaking now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.

The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 31 January 2029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

AK Civil & Construction Pty Ltd recently brought an application before the Fair Work Commission for approval of the AK Civil & Construction Pty Ltd Enterprise Agreement 2024. The matter arose from negotiations between the company and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union. The primary focus of the dispute was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The company sought to finalise the agreement to establish clear terms and conditions for its employees, while the union aimed to ensure fair representation of its members' interests.

The court was tasked with determining whether the proposed enterprise agreement complied with the legal prerequisites for approval. Key issues included whether the agreement was certified as "no disadvantage" by the Fair Work Commission, whether it was made in good faith, and whether it satisfied the procedural requirements outlined in the Fair Work Act. Additionally, the court needed to assess if the agreement met the criteria for "better off overall or in the ordinary course of events" and whether it included appropriate dispute resolution mechanisms.

In its decision, the Fair Work Commission examined the evidence presented by both parties and assessed the agreement against the legislative framework. The Commission found that the agreement was certified as "no disadvantage" and was made in good faith. It also determined that the agreement was procedurally sound and met the "better off overall or in the ordinary course of events" test. The court concluded that the agreement provided adequate dispute resolution mechanisms and was consistent with the Fair Work Act. Based on these findings, the Commission approved the AK Civil & Construction Pty Ltd Enterprise Agreement 2024.

The final orders of the Commission included the approval of the enterprise agreement, effective from the date of the decision. This outcome allowed AK Civil & Construction Pty Ltd to implement the agreed terms and conditions for its employees, providing certainty and stability for both the company and its workforce. The union also achieved its objective of ensuring fair representation of its members' interests through the negotiated agreement.

AK Civil & Construction Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established