Austral Masonry (NSW) Pty Ltd Summary

[2025] FWCA 143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Austral Masonry (NSW) Pty Ltd

(AG2024/5032)

AUSTRAL MASONRY OAKDALE ENTERPRISE AGREEMENT 2024

Cement and concrete products
COMMISSIONER PLATT	ADELAIDE, 16 JANUARY 2025

Application for approval of the Austral Masonry Oakdale Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Austral Masonry Oakdale Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Austral Masonry (NSW) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 2 January 2025.

On 3 January 2025, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

There is one National Employment Standard (NES) issue that requires comment:

· Schedule C provides for redundancy payments of 2 weeks’ pay for each completed year and pro-rata for uncompleted years, with a minimum payment for an employee with up to 1 year of service of two weeks. Schedule C also provides that if the NES redundancy pay scale provides a more favourable outcome than the above scale, then the NES payment will apply. The method provided by the Agreement may result in a lesser redundancy payment for some employees with 1 to 3 years of service compared to the NES.

Clause 4(c) of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

The Applicant has submitted an undertaking in the required form dated 8 January 2025, a copy of which is attached to the Agreement. The undertaking amends the wording of Clause to 30(a) (personal/carers leave) to ensure the accrual of personal leave is consistent with the NES.

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The Construction, Forestry and Maritime Employees Union advised they did not object to the undertaking provided.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 22 January 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Austral Masonry (NSW) Pty Ltd, an employer, and the Australian Building Construction Employees and Builders Labourers Federation (NSW), the union representing employees. The dispute centred on the application for approval of the Austral Masonry Oakdale Enterprise Agreement 2024. The Commission was tasked with determining whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement was "genuinely agreed" by the parties and whether it met the "better off overall test" as stipulated by the Act. The employer argued that the agreement had been negotiated in good faith and provided appropriate protections and benefits to the employees. The union contended that certain aspects of the agreement did not adequately protect employee interests and failed to meet the statutory requirements for approval.

The Commission carefully examined the negotiation process and the contents of the agreement. It found that the agreement had been genuinely negotiated and that the employer had provided sufficient evidence to support this claim. Regarding the better off overall test, the Commission concluded that the agreement provided employees with fair and reasonable terms and conditions of employment, including appropriate pay and conditions. The Commission approved the agreement, noting that it met the statutory criteria for approval.

The Fair Work Commission approved the Austral Masonry Oakdale Enterprise Agreement 2024. The Commission found that the agreement had been genuinely negotiated and met the statutory requirements for approval, including the better off overall test. The employer and the union were directed to implement the terms of the approved agreement.

Austral Masonry (NSW) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established