Aqua Prep Pty Ltd Summary

[2025] FWCA 30

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aqua Prep Pty Ltd

(AG2024/5057)

AQUA PREP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS NON DESTRUCTIVE DIGGING ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 JANUARY 2025

Application for approval of the AQUA PREP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Non Destructive Digging Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the AQUA PREP PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Non Destructive Digging Enterprise Agreement 2024 – 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aqua Prep Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 18 November 2024 and the Agreement was made on 12 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 January 2025. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a new enterprise agreement between Aqua Prep Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors. The application was made to the Fair Work Commission under section 233 of the Fair Work Act 2009. The dispute centred around whether the proposed enterprise agreement met the necessary criteria for approval under the legislation.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act. Specifically, the Commission needed to determine if the agreement satisfied the "better off overall test" under section 234 of the Act, ensuring that employees would be no worse off financially and, in most cases, better off overall compared to their previous conditions. Additionally, the Commission had to consider whether the agreement had been made in good faith and if it contained the necessary minimum terms and conditions as mandated by the Act.

In reaching its decision, the Commission evaluated the financial implications of the proposed agreement for employees, considering factors such as wages, working conditions, and other entitlements. The Commission found that the agreement did meet the better off overall test, as employees would experience improvements in their conditions without any significant detriments. Furthermore, the Commission determined that the agreement had been made in good faith and contained all the required minimum terms and conditions. Consequently, the Commission approved the enterprise agreement, finding it to be compliant with the legislative requirements.

The Fair Work Commission approved the Aqua Prep Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Non Destructive Digging Enterprise Agreement 2024-2027. This decision confirmed that the agreement met all necessary legal criteria and would come into effect as per the terms outlined in the agreement.

Aqua Prep Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established