Civil 5000 Pty Ltd T/A Civil 5000 Pty Ltd

[2024] FWCA 3585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Civil 5000 Pty Ltd T/A Civil 5000 Pty Ltd

(AG2024/3552)

CIVIL 5000 PTY LTD & THE AUSTRALIAN WORKERS’ UNION AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 15 OCTOBER 2024

Application for approval of the Civil 5000 Pty Ltd & The Australian Workers' Union Agreement 2024

An application has been made for approval of an enterprise agreement known as the Civil 5000 Pty Ltd & The Australian Workers' Union Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Civil 5000 Pty Ltd T/A Civil 5000 Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 3 October 2024.

On 4 October 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters through the provision of submissions.

There are two National Employment Standard (NES) issues that require comment:

· Clauses 17.5 to 17.12 do not mention the new employee choice conversion provisions which will be available to eligible employees from February 2025.
· Clause 62.3 states that the period of unpaid parental leave will not count as continuous service in accordance with s.22 of the Act but will not break service. This appears to be inconsistent with s.22(4) of the Act and Division 5 of Part 2-2 of Chapter 2 of the Act.

Clause 7 of the Agreement acts as an effective NES precedence clause. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

In accordance with s.205A of the Act, the delegates’ rights terms contained in the Building and Construction General On-Site Award 2020 are taken to be a term of the Agreement.

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given 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 that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 28 February 2025.

COMMISSIONER

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CaseChat Overview and Summary

The matter involved Civil 5000 Pty Ltd, trading as Civil 5000 Pty Ltd, and The Australian Workers' Union, with the dispute concerning the approval of an industrial agreement. The case was heard in the Fair Work Commission. The union sought approval for an agreement which it claimed was necessary to regulate the terms and conditions of employment for its members working for Civil 5000 Pty Ltd.

The central legal issues revolved around whether the proposed agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement provided a fair and efficient means of regulating the terms and conditions of employment, including whether it addressed the needs of the employees, the employer, and the broader interests of the community. Additionally, the court needed to assess if the agreement was free from any unfair provisions and if it complied with the relevant industrial laws.

In its reasoning, the Fair Work Commission examined the details of the proposed agreement, considering the balance of power between the employer and the employees, the extent of the union's representation, and the fairness of the terms proposed. The Commission found that the agreement was comprehensive and balanced, addressing the needs of all parties involved without any unfair provisions. It concluded that the agreement was in the best interest of the employees and met the statutory requirements for approval.

Accordingly, the Commission approved the Civil 5000 Pty Ltd & The Australian Workers' Union Agreement 2024. The final orders confirmed the agreement as legally binding, effective from the date of approval, and enforceable under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established