Basetec Services Pty Ltd

[2025] FWCA 2276

[2025] FWCA 2276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Basetec Services Pty Ltd

(AG2025/2010)

BASETEC NOVAFAST WORKPLACE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER FOX	MELBOURNE, 10 JULY 2025

Application for approval of the Basetec Novafast Workplace Agreement 2025.

1. An application has been made for approval of an enterprise agreement known as the Basetec Novafast Workplace Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Basetec Services Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. Clause 5 of the Agreement incorporates into the Agreement the model flexibility term as if its terms were set out in full in the Agreement, save and except that the matters over which agreement may be reached in an individual flexibility arrangement include any matters contained in parts 3-8 of the Agreement (and the appendices of the Agreement). Pursuant to s.202(4) and Clause 107 of Schedule 1 of the Act, the model flexibility term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement, noting that the matters over which agreement may be reached in an individual flexibility arrangement include any matters contained in parts 3-8 of the Agreement (and the appendices).

1. I note that clause 8.1 of the Agreement states that the Workplace Delegate's Rights provision from the Manufacturing and Associated Industries and Occupations Award 2020 is incorporated into this Agreement. As such, the workplace delegates’ rights term in Clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Public Holidays: Clause 24.1 states that employees are entitled to ten public holidays in accordance with the National Employment Standards. The Agreement appears to limit public holidays to 10 whereas the NES does not. There may be times where more than 10 public holidays were declared and gazetted by a State or Territory as per s.115(1)(b) of the Act.

• Annual Leave: Clause 25.3(a) states that in general, employees can take their annual leave at a mutually convenient time. Pursuant to s.88(2) of the Act, an employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

• Compassionate Leave: Clause 27.2 describes when compassionate leave may be taken but is silent in relation to the entitlement when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child, pursuant to s.104(1)(c) of the Act.

• Withholding Monies on Termination: Pursuant to clause 31.3 of the Agreement, where an employee ceases employment within 6 months of training, the Employer may require the employee to repay the cost of training, and that the money may be recovered from monies owing to employee on termination. Clause 34.5 of the Agreement states that the Employer may recover any money owing for clothing, tools, keys, phone that are not returned in good working order and may deduct any money owing from an employee’s termination pay. The effect of these clauses is that it appears to permit the employer to deduct employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination).

1. However, noting clause 3.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 17 July 2025. The nominal expiry date of the Agreement is 17 July 2028.

COMMISSIONER

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Annexure A