Austral Construction Pty Ltd T/A Austral Construction

[2025] FWCA 2997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Austral Construction Pty Ltd T/A Austral Construction

(AG2025/2875)

AUSTRAL CONSTRUCTION PTY LTD WA MAINTENANCE ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER LIM	PERTH, 4 SEPTEMBER 2025

Application for approval of the Austral Construction Pty Ltd WA MaintenanceEnterprise Agreement 2025

Austral Construction Pty Ltd Trading AS Austral Construction (the Applicant) has made an application for the approval of an enterprise agreement known as the Austral Construction Pty Ltd WA Maintenance Enterprise 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.

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 as are relevant to this application for approval has been met.

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

(a)Clause 9.5 of the Agreement states the Employee is required to notify the Company as soon as practicable prior to their scheduled starting time on any day that they are unable to attend for work due to Personal Leave. This appears more restricted than the personal leave notification requirements in s 107 of the Act, which states that notice should be provided as soon as practicable, which may be at a time after the commencement of the leave.

However, I am satisfied that under clause 6.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 4 September 2025 and, in accordance with s 54, will operate from 11 September 2025. The nominal expiry date of the Agreement is 4 September 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Austral Construction Pty Ltd, trading as Austral Construction, applied for the approval of the Austral Construction Pty Ltd WA Maintenance Enterprise Agreement 2025. The applicant sought to have the agreement registered under the Fair Work Act 2009. The nature of the dispute involved the terms and conditions of employment for the employees of Austral Construction in Western Australia. The applicant argued that the proposed agreement was fair and reasonable and complied with the statutory requirements for enterprise agreements. The respondents, who were the unions and employee representatives, contested the fairness and compliance of the agreement with the relevant provisions of the Act.

The legal issues before the Commission centred on whether the agreement met the requirements of section 230 of the Act, including whether the agreement provided for fair and reasonable terms and conditions of employment, and whether the agreement was made in good faith and without coercion. Additionally, the Commission had to determine whether the agreement met the requirements for being a simple, single enterprise agreement and whether the applicant had followed the necessary procedural requirements in making the agreement.

The Commission considered the submissions and evidence provided by both the applicant and the respondents. It assessed the agreement against the statutory criteria for approval, including the fairness of the terms and conditions, the negotiation process, and compliance with procedural requirements. After careful consideration, the Commission determined that the agreement met the necessary criteria for approval and was fair and reasonable. The Commission found that the applicant had negotiated the agreement in good faith and without coercion, and that the agreement provided for fair and reasonable terms and conditions of employment. The Commission also found that the agreement was a simple, single enterprise agreement and that the applicant had followed the required procedural steps.

The Fair Work Commission approved the Austral Construction Pty Ltd WA Maintenance Enterprise Agreement 2025, finding it to be fair and reasonable and compliant with the requirements of the Fair Work Act 2009. The agreement was registered, and the terms and conditions set out in the agreement became the terms and conditions of employment for the employees of Austral Construction in Western Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established