Burke Industries Pty Ltd

[2025] FWCA 2135

[2025] FWCA 2135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Burke Industries Pty Ltd

(AG2025/1781)

BURKE INDUSTRIES PTY LTD ENTERPRISE AGREEMENT 2025-2029

Building services
COMMISSIONER HUNT	BRISBANE, 30 JUNE 2025

Application for approval of the Burke Industries Pty Ltd Enterprise Agreement 2025-2029

1. Burke Industries Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Burke Industries Pty Ltd Enterprise Agreement 2025-2029 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 12 May 2025 and the Agreement was made on 3 June 2025. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. There were no bargaining representatives for the Agreement. Therefore, the Commission was not required to seek the views of any person or organisations, for the purposes of satisfying s.190(4) of the Act.

1. 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. In correspondence issued to the Employer, I raised concerns with the manner in which the vote for the Agreement was conducted. The vote was conducted by way of SMS, with employees texting their votes to a mobile number of Master Builders Queensland (MBQ), the Employer’s representative. MBQ does not have access to employee contact numbers, and were therefore unaware of the identities of the employees voting yes or no.

1. I informed the Employer that I held concerns that employees were not aware that MBQ would receive the text messages without identifying a particular employee’s vote, as this did not appear to have been made clear to employees, and may have led to employees not voting when they had wished to vote no. Of the 26 employees eligible to vote on the Agreement, only eight employees cast votes. I therefore directed the Employer to issue email correspondence to eligible employees, asking employees to inform the Commission by email to my chambers (only) if they held any concerns in respect of how the vote was conducted.

1. I received a number of emails from employees who did not vote on the Agreement. None of these employees disclosed any concerns with the manner in which the vote was conducted. I am therefore satisfied that the Agreement was genuinely agreed to by employees, having regard to s.188 of the Act and the Commission’s Statement of Principles on Genuine Agreement.

1. I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. 
   The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2025. The nominal expiry date of the Agreement is 30 June 2029.

COMMISSIONER

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Annexure A – Undertakings