Awj Labour Co Pty Ltd
[2025] FWCA 882
•11 MARCH 2025
| [2025] FWCA 882 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Awj Labour Co Pty Ltd
(AG2025/304)
AWJ LABOUR CO PTY LTD ENTERPRISE AGREEMENT 2025 - 2029
| Building industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 11 MARCH 2025 |
Application for approval of the Awj Labour Co Pty Ltd Enterprise Agreement 2025 - 2029
Introduction
Awj Labour Co Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Awj Labour Co Pty Ltd Enterprise Agreement 2025 - 2029 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Building and Construction General On-site Award 2020 (the Award).
Form F16 (Employee Bargaining Representatives)
Eight Form F18A documents were filed by Employee Bargaining Representatives. However, the Form F16 filed by the Employer records only six Employee Bargaining Representatives.
An amended Form F16 was subsequently submitted to the Commission referring to eight Employee Bargaining Representatives. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the Commission and do so pursuant to s.586(a) of the Act.
Notice of Employee Representational Rights (NERR)
The F17B Declaration (the Declaration) stated that a letter containing the NERR was provided to employees. The NERR indicated that the proposed Agreement was intended to cover employees who were already covered by an existing Agreement. However, the Employer also stated in the Declaration that no previous Agreements covered these employees.
The Employer submitted that they operate within a related entity with a long-standing business history, where all employees have been employed under an Enterprise Agreement. As a result, the Employer contended that all employees previously covered by this other Enterprise Agreement were also employed by the entity submitting the proposed Agreement. The Employer further submitted that to prevent any confusion among employees, the NERR was used to clearly communicate the coverage of the proposed Agreement.
Upon review of the Employer’s submission, it appeared that the employees covered by the Agreement may have been employed by two separate entities. The Employer was therefore requested to provide payroll records or other evidence to establish that the 42 employees covered by the Agreement were, in fact, employed by Awj Labour Co Pty Ltd during the access and voting periods.
In response, the Employer submitted 40 employment contracts each dated 11 November 2024 confirming that employees had been transferred from another subsidiary company to the Employer. The Employer also clarified that a clerical error had led to an incorrect figure being recorded in the Declaration, and that 40 employees are covered by the Agreement rather than 42.
I consider it appropriate in the circumstances to allow a correction of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act. I am also satisfied having regard to the Employer’s submissions that all 40 employees were employed by the Employer during the access and voting periods.
Agreement Explanation
In its application, the Employer stated that employees were notified of the access period via email, which included relevant documents such as the proposed Agreement and a summary of key changes. The Employer further indicated that on 24 and 29 January 2025, Human Resources representatives attended employee worksites to provide explanations regarding the Agreement. Meeting minutes detailing the questions raised by employees were submitted to the Commission. The Employer also noted that a Human Resources representative was available to clarify the terms of the Agreement and address any employee inquiries.
The Employer provided additional submissions about how the terms and effects of the Agreement were explained to employees. I am satisfied having regard to those submissions that the requirements of s.180(5) of the Act have been met.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the Award is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Appendix G.
National Employment Standards (NES) Precedence Term
Clause 2.4 of the Agreement states that it operates in conjunction with the NES. However, this does not appear to be an effective NES precedence clause, as it does not clarify what occurs if the Agreement provides a less favourable entitlement than the NES.
The Employer provided an undertaking to address this issue.
Termination
Clause 23.2 of the Agreement states that the Employer may dismiss or stand down an employee without pay during an investigation being conducted for reasons of, but not limited to misconduct, wilful disobedience, stealing, refusal of work and being under the influence of alcohol, drugs and other prohibited substances. This is inconsistent with s.123 of the Act which provides that employees can only be terminated without notice for serious misconduct.
I note that in accordance with the NES precedence term in Undertaking 1 of Appendix F of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Personal/Carer’s Leave
Clause 32.4 of the Agreement provides that an employee when unable to attend work due to illness or injury shall telephone, or if unable, have someone telephone management to advise of their inability to attend work and advise of the likely extent of their absence by 6.00am that working day or in extraordinary/emergency situations, as soon as practical. This appears to be inconsistent with s.107 of the Act which provides that notice must be given as soon as practicable (which may be a time after the leave has started). The Agreement appears to limit the ‘as soon as practicable’ provision to extraordinary or emergency situations only.
I note that in accordance with the NES precedence term in Undertaking 1 of Appendix F of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Compassionate Leave
Clause 33 of the Agreement does not appear to include the entitlement to compassionate leave where a member of an employee’s immediate family or household sustains an injury that poses a serious threat to their life pursuant to s.104(1)(a)(ii), after the stillbirth of a child of the employee or a member of the employee’s immediate family or household pursuant to s.104(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage pursuant to s.104(1)(c) of the Act.
I note that in accordance with the NES precedence term in Undertaking 1 of Appendix F of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Section 190 Undertakings
The Employer provided written undertakings. A copy of the undertakings is attached in Appendix F. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, 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.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 March 2025. The nominal expiry date of the Agreement is 11 March 2029.
DEPUTY PRESIDENT
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