Australia Engineering Solutions Pty Ltd

[2025] FWCA 404

[2025] FWCA 404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australia Engineering Solutions Pty Ltd

(AG2025/118)

AUSTENG ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER REDFORD	MELBOURNE, 3 FEBRUARY 2025

Application for approval of the Austeng Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Austeng Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australia Engineering Solutions Pty Ltd. The Agreement is a single enterprise agreement.

Workplace Delegates Rights.

1. As the Agreement does not contain a workplace delegates rights term, pursuant to s 205A(2) of the Act, the workplace delegates rights term prescribed by clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement. 

Interaction with the National Employment Standards.

1. Clause 3.2(c) of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Clause 15.3 of the Agreement requires notification of an absence on personal leave must be provided by an employee as soon as is practicable and prior to the employee’s expected commencement time. Section 107(2)(a) of the Act requires that notice must be given to an employer “as soon as practicable (which may be at a time after the leave has started)”. To the extent the Agreement requires a more onerous provision of notice than is required by the NES, I note that as a result of the NES precedence clause, the provisions of the NES will prevail.

b.Clause 16 of the Agreement provides for compassionate leave however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

c.Clause 26.4 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. This clause may purport to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause will have no effect to the extent of any inconsistency.

Consideration.

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

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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