Atlantic (Aust) Pty Ltd T/A ADENCO

[2025] FWCA 2594

[2025] FWCA 2594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Atlantic (Aust) Pty Ltd T/A ADENCO

(AG2025/2228)

ATLANTIC (AUST) PTY LTD BHP WESTERN RIDGE CRUSHER PROJECT AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 5 AUGUST 2025

Application for approval of the Atlantic (Aust) Pty Ltd BHP Western Ridge Crusher Project Agreement 2025.

1. Atlantic (Aust) Pty Ltd Trading As ADENCO (the Applicant) has made an application for the approval of an enterprise agreement known as the Atlantic (Aust) Pty Ltd BHP Western Ridge Crusher Project Agreement 2025 (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.

1. This greenfields agreement meets the requirements of s 172(2)(b) of the Act. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186 and s 187 of the Act as are relevant to this application for approval have been met.

1. In accordance with s 187(5)(a) of the Act, I am satisfied that The Australian Workers' Union (the AWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 24(c) provides time not worked due to authorised absences such as personal leave, annual leave, bereavement leave, community services leave, domestic violence leave, public holidays and workers' compensation to a maximum of two weeks and R&R shall count as continuous service. This may be more restrictive than s 22 of the Act which does not provide a limit on the time counted as continuous service for authorised absences.

(b)Clause 27.2(c) states an employee will, as soon as reasonably practicable and other than in extraordinary circumstances, within four hours of the commencement of sick leave, inform the employer of the employee's inability to attend and the estimated duration of the absence. This may be inconsistent with s 107(2) of the Act which provides for notice to be given as soon as reasonably practicable (which may be a time after the leave has started).

(c)Clause 11.2(f) provides the employer may deduct the equivalent cost of the forward journey airfare from final monies owing from an employee who terminates or discontinues their employment prior to completing 20 days of continuous service on the project site. Furthermore, clause 14(n)(ii) states the employer may deduct any amount to be refunded from any monies otherwise due to the employee under their contract of employment for rest and recreation leave taken in advance. These clauses do not appear to limit the source of monies deducted and therefore may restrict an employee’s entitlement to payment of NES entitlements upon the termination of employment.

(d)Clause 21.3(g) states that the employer has the right to summarily dismiss employees for reasons of serious misconduct or similar behaviour. The limitation on the division provided in s 123(1) of the Act refers to serious misconduct only and so this clause may be more restrictive than s 123 of the Act.

(e)Clauses 14(o)–(p) and 21.4(c) provide for terms that deal with abandonment of employment. It is unclear whether employees who are deemed to have abandoned their employment will be afforded their minimum notice of termination entitlement as per s 117(3) of the Act. Section 123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s 117 of the Act.

1. However, I am satisfied that under clause 5(e) of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement does not contain a consultation term that meets the requirements of the Act. Pursuant to s 205(2) and Clause 107 of Schedule 2.3 of the Act, the model consultation term as prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Pursuant to ss 53(2)(b) and 201(2A) of the Act, I note the Agreement was made with the AWU and that the Agreement covers it.

1. The Agreement was approved on 5 August 2025 and, in accordance with s 54, will operate from 12 August 2025. The nominal expiry date of the Agreement is 5 August 2029.

COMMISSIONER

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