Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros

[2025] FWCA 531

[2025] FWCA 531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros

(AG2025/177)

CLEARY BROS (BOMBO) PTY LTD CONCRETE EMPLOYEES ENTERPRISE AGREEMENT 2024

Road transport industry
COMMISSIONER SLOAN	SYDNEY, 11 FEBRUARY 2025

Application for approval of the Cleary Bros (Bombo) Pty Ltd Concrete Employees Enterprise Agreement 2024

1. Cleary Bros (Bombo) Pty Ltd has applied for approval of an enterprise agreement known as the Cleary Bros (Bombo) Pty Ltd Concrete Employees Enterprise Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.

2. The Transport Workers’ Union of Australia NSW/QLD (Interim Governance) Branch (“TWU”) was a bargaining representative for the Agreement. It supports the approval of the Agreement.

3. The notice of employee representational rights that Cleary Bros provided to the employees does not conform to the requirements of s 174 of the Act. Rather, it appears to be based on a superseded version of the prescribed form. However, I consider this to be a minor procedural or technical error of the nature contemplated by s 188(5) of the Act. I am satisfied that the employees are not likely to have been disadvantaged by the error. As a result, I will disregard it.

4. The Agreement contains terms that on their face appear inconsistent with the National Employment Standards (“NES”), namely:

a.clause 28.1 provides an apparently fixed list of public holidays to which employees are entitled. It does not contemplate any other day or part-day declared or prescribed to be a public holiday (see s 115(1)(b) of the Act);

b.clause 33.2(b) requires an employee to inform Cleary Bros of any absence on personal leave, its cause and likely duration before their normal commencement time. Section 107(2)(a) of the Act provides that an employee must notify the employer “as soon as practicable (which may be a time after the leave has started)”; and

c.clause 42.6 provides that an employee will not be entitled to payment in lieu of notice or redundancy pay if the employer obtains acceptable alternative employment for them. Two issues arise. First, there is no provision in the Act that allows an employer to avoid providing or making a payment in lieu of notice in those circumstances (cf. s 120 in respect of redundancy pay). Second, any variation to redundancy pay under s 120 is not automatic, but is subject to an order of the Commission.

1. Having noted these matters, clause 7.2 of the Agreement provides that the NES “will apply where this Agreement is silent or where the NES provides a more favourable outcome for the Employee”. This provision should ensure that clauses 28.1, 33.2(b) and 42.6 are not applied in a manner inconsistent with the NES. In raising these issues, it is my intention to ensure that this is the case.

1. The delegates’ rights provisions in clause 40 of the Agreement are less favourable than clause 29A of the Road Transport and Distribution Award 2020, which covers the workplace delegates. Pursuant to s 205A(2)(b) of the Act, clause 29A of the Award is taken to be a term of the Agreement.

2. Having regard to the matters set out above, and to the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.

3. The TWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the TWU.

4. The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 18 February 2025. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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