Civmec Construction and Engineering Pty Ltd

[2025] FWCA 1439

[2025] FWCA 1439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Civmec Construction and Engineering Pty Ltd

(AG2025/1127)

CIVMEC HENDERSON FABRICATION, MATERIALS HANDLING AND ASSEMBLY YARD WORKS ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER LIM	PERTH, 1 MAY 2025

Application for approval of the Civmec Henderson Fabrication, Materials Handling and Assembly Yard Works Enterprise Agreement 2025

Introduction

1. Civmec Construction and Engineering Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Civmec Henderson Fabrication, Materials Handling and Assembly Yard Works Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

National Employment Standards Issues

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clauses 3.2.1 and 3.2.2 of the Agreement provide that “Should an employee not provide the required notice they agree to the forfeiture of entitlements to the equivalent value of the period of notice not given”. This clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

(b)Clause 3.3 of the Agreement provides that “at the time of termination, all untaken accrued annual leave shall be paid out. All proportionate leave paid out on termination shall also include the payment of leave loading, except in cases where an Employee is terminated for reasons of misconduct”. This may be inconsistent with s.90(2) of the Act, which provides that if, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

(c)Clause 3.4.2 of the Agreement provides for the substitution of public holidays by agreement between the company and the majority of employees. This is inconsistent with s.115 of the Act which provides that enterprise agreements may include a term for an employer and an individual employee to agree on the substitution of a public holiday.

(d)Clause 3.5.2 of the Agreement provides that “An employee shall inform the Company of the Employee’s inability to attend for duty within 2 hours of the commencement of such absence.” It is unclear from the construction of this clause whether this may be after the commencement time and may be inconsistent with s107 of the Act.

(e)Clause 3.2.4 of the Agreement provides that employees are deemed to have abandoned their employment where they have had 3 consecutive days of unauthorised absence from work, unless through exceptional circumstances the employee has been unable to communicate their absence to the Company. The Agreement does not state what the consequences are for the abandonment of employment are, as such it is unclear whether these employees receive notice of termination per ss.117–123 of the Act.

1. The Applicant provided an undertaking containing a NES precedence clause. I am satisfied that as per undertaking 1 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pre-Apprentice Rates

1. Clause 5.3 of the Agreement provides for pre-apprenticeships under the Agreement to serve as selection criteria for apprenticeships. Pre-apprentices are engaged for a maximum of 6 months after which an apprenticeship may be offered or employment will be terminated. Pre-apprentices receive a percentage of the T2 tradesperson wage rate. However, this results in rates which fall below the Award provided for unapprenticed juniors under the Award. As such pre-apprentice employees whose rates fall below the award could not be considered better off overall.

1. The Employer provided an undertaking to address this issue.

Section 190 Undertakings

1. The Applicant has 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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

Section 183 Bargaining Representatives

1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (AMWU) and the Maritime Union of Australia, a Division of the Construction, Forestry and Maritime Employees’ Union (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

Approval

1. The Agreement was approved on 1 May 2025 and, in accordance with s.54, will operate from 8 May 2025. The nominal expiry date of the Agreement is 1 May 2028.

COMMISSIONER

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Annexure A