Bolte Civil Pty Ltd Summary

[2024] FWCA 1916

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bolte Civil Pty Ltd

(AG2024/428)

BOLTE CIVIL PTY LTD ENTERPRISE AGREEMENT 2023-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 24 MAY 2024

Application for approval of the Bolte Civil Pty Ltd Enterprise Agreement 2023-2027.

Bolte Civil Pty Ltd (the Employer) has made an application for the approval of the Bolte Civil Pty Ltd Enterprise Agreement 2023-2027 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 37 – Annual Leave and Clause 40.3 – Personal Leave are potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 May 2024. The nominal expiry date of the Agreement is 24 May 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Bolte Civil Pty Ltd, an applicant, seeking approval of an enterprise agreement for the period 2023-2027. The application was heard in the Fair Work Commission. The central dispute was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. The applicant argued that the agreement was fair and reasonable for the employees, while the respondents raised concerns about certain clauses within the agreement.

The legal issues revolved around whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act, particularly focusing on the fairness and reasonableness of the terms. The respondents argued that some clauses were not fair and reasonable due to potential adverse impacts on employee entitlements and conditions. The Commission had to determine if the agreement met the statutory criteria for approval, including whether it provided for minimum rates of pay and conditions, and if it was free from provisions that were contrary to public policy.

In its decision, the Commission examined the agreement clause by clause, assessing each term against the statutory requirements. It found that while most provisions were fair and reasonable, certain clauses did not meet the criteria. The Commission made specific modifications to ensure compliance with the Fair Work Act. Ultimately, the Commission approved the agreement with modifications, finding that it was fair and reasonable in all other respects and did not contravene public policy. The decision ensured that the enterprise agreement would provide for the minimum terms and conditions of employment as required by law, while also addressing the respondents' concerns.

Bolte Civil Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established