Brefni Contracting Pty Ltd T/A Brefni Contracting

[2021] FWCA 6881

[2021] FWCA 6881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Brefni Contracting Pty Ltd T/A Brefni Contracting
(AG2021/7798)

BREFNI CONTRACTING PTY LTD BREFNI MAINTENANCE PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 29 NOVEMBER 2021

Application for approval of the Brefni Contracting Pty Ltd Brefni Maintenance Pty Ltd Enterprise Agreement 2021.

[1] Brefni Contracting Pty Ltd and Brefni Maintenance Pty Ltd (the Employers) have made an application for the approval of the Brefni Contracting Pty Ltd Brefni Maintenance Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employers are single interest employers. Ms Diana Rodionova (HR Administrator and Payroll of Brefni Contracting Pty Ltd and Brefni Maintenance Pty Ltd) advised the Commission that the companies operate out of the same premises and are controlled by the same management team and that each company supplies labour to Brefni Pty Ltd. Brefni Pty Ltd offer plant and civil construction services to third parties using the combined labour resources provided by Brefni Maintenance Pty Ltd and Brefni Contracting Pty Ltd. Ms Rodionova submitted that the three entities are engaged in a common enterprise providing a single product to the civil construction industry.

[3] I am satisfied that Brefni Contracting Pty Ltd and Brefni Maintenance Pty Ltd are single interest employers under s.172(5) of the Act as they are engaged in common enterprise (per s.172(5)(a)).

[4] The Employers have 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.

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

[6] I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):

•  Clause 15.5 – Contract of Employment (Termination)

•  Clause 19.3 – Public Holidays

•  Clause 27.7 – Personal/Carer’s Leave

•  Clause 28 – Compassionate Leave

[7] Noting the undertaking provided by the Employers, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2021. The nominal expiry date of the Agreement is 29 November 2025.

DEPUTY PRESIDENT

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Annexure A