Brefni Contracting Pty Ltd Summary

[2025] FWCA 2941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Brefni Contracting Pty Ltd

(AG2025/2587)

BREFNI ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 1 SEPTEMBER 2025

Application for approval of the Brefni Enterprise Agreement 2025

Introduction

Brefni Contracting Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Brefni Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 21 January 2025 and the Agreement was made on 25 July 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

The NERR contained a different Agreement title to the final Agreement, being the ‘Brefni Contracting Pty Ltd Brefni Maintenance Pty Ltd Enterprise Agreement 2025’. The Employer provided submissions that this matter constituted a minor technical error.

I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this constituted a minor technical or procedural error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in 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.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, and having had regard to the Statement of Principles on Genuine Agreement, 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 8 September 2025. The nominal expiry date of the Agreement is 8 September 2029.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) was an application for the approval of the Brefni Enterprise Agreement 2025. Brefni Contracting Pty Ltd, the applicant, sought to have the proposed agreement approved as a modern award. The respondents, various unions representing employees of the company, raised objections to certain clauses in the proposed agreement. The FWC, presided over by Commissioner Smith, was tasked with reviewing the application and determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issues before the FWC were whether the proposed agreement contained provisions that were contrary to public policy, whether the agreement had been genuinely negotiated, and whether it provided for minimum entitlements at least equal to the relevant modern award. The unions argued that certain clauses related to the payment of overtime and the use of casual employees contravened public policy. They also contended that the agreement had not been genuinely negotiated and that it did not provide for minimum entitlements at least equal to the relevant modern award.

The FWC found that the proposed agreement did not contravene public policy and that it had been genuinely negotiated. The FWC acknowledged that the agreement contained clauses that permitted the use of casual employees and the payment of overtime at a reduced rate under certain conditions. However, the FWC held that these provisions were not contrary to public policy as they were not overly burdensome or exploitative of employees. Regarding the genuine negotiation of the agreement, the FWC accepted the evidence provided by the applicant that the agreement had been negotiated in good faith and that there had been meaningful consultation with the unions. Finally, the FWC determined that the proposed agreement provided for minimum entitlements at least equal to the relevant modern award, as it contained provisions that were not less favourable than those in the relevant modern award.

The FWC approved the Brefni Enterprise Agreement 2025 as a modern award, subject to certain modifications to ensure compliance with the Fair Work Act 2009. The FWC ordered that the applicant remove certain clauses that were found to be contrary to public policy and that it provide the unions with certain information regarding the use of casual employees. The FWC also ordered that the agreement be registered as a modern award, effective from the date of the decision.

Brefni Contracting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established