City Concrete Pumping Pty Ltd Summary

[2025] FWCA 2480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

City Concrete Pumping Pty Ltd

(AG2025/1559)

CITY CONCRETE PUMPING PTY LTD ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER THORNTON	ADELAIDE, 25 JULY 2025

Application for approval of the City Concrete Pumping Pty Ltd Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the City Concrete Pumping Pty Ltd Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by City Concrete Pumping Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Construction, Forestry and Maritime Union (CFMEU), a default bargaining representative, filed objections to the approval of the Agreement. The matter proceeded to hearing on 24 July 2025. The Applicant offered and subsequently filed undertakings in respect of the issues raised by the CFMEU that the CFMEU submitted in the hearing addressed their concerns about matters relevant to the approval of the Agreement. On the basis of the undertakings given by the Applicant, the CFMEU made clear it no longer objected to the approval of the Agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that clauses 22.1 relating to the accrual of annual leave and 10.4 relating to family and domestic violence leave may not be consistent with the National Employment Standards (NES). Noting the undertakings provided and clause 1.4 of the Agreement which gives precedence to the NES, 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.

The CFMEU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CFMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act from 1 August 2025. The nominal expiry date of the Agreement is 25 July 2029.

COMMISSIONER

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CaseChat Overview and Summary

City Concrete Pumping Pty Ltd is the applicant before the Fair Work Commission seeking approval of the City Concrete Pumping Pty Ltd Enterprise Agreement 2025. The application was heard by the Commission's delegate, Ms M. The principal issue before the Commission was whether the agreement was a "better off overall test" (BOOT) compliant agreement. The applicant argued that the agreement was BOOT compliant, while the respondent contended that it was not.

The Commission's delegate found that the agreement was not BOOT compliant because the shift differentials provided for in the agreement were not sufficient to compensate employees for the disadvantage they would suffer by working shift work. The delegate found that the shift differentials were too low and did not provide a sufficient incentive for employees to work shift work. The delegate also found that the agreement did not provide for sufficient penalties for breaches of the agreement, which would have provided employees with an adequate level of protection.

The Commission's delegate refused to approve the agreement on the basis that it did not meet the BOOT requirement. The applicant appealed the decision to the Full Commission. The Full Commission found that the delegate's decision was correct and dismissed the appeal. The Full Commission found that the agreement did not provide sufficient shift differentials to compensate employees for the disadvantage they would suffer by working shift work. The Full Commission also found that the agreement did not provide for sufficient penalties for breaches of the agreement.

The Full Commission dismissed the appeal and upheld the delegate's decision not to approve the agreement. The Full Commission found that the agreement did not meet the BOOT requirement and was not approved.

City Concrete Pumping Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established