Construction, Forestry and Maritime Employees Union Summary

[2025] FWCA 541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Construction, Forestry and Maritime Employees Union

(AG2025/231)

TNE CIVIL PTY LTD PERDAMAN CERES PROJECT GREENFIELDS AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 11 FEBRUARY 2025

Application for approval of the TNE Civil Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024

An application has been made for approval of an enterprise agreement known as the TNE Civil Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024 (the Agreement) pursuant to s.182(3) of the Fair Work Act 2009 (the Act) by the Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement that is a greenfields agreement.

The matter was allocated to my Chambers on 6 February 2025.
On 6 February 2025, 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 including through the provision of an undertaking.

There are four National Employment Standard (NES) issues that require comment:
· Clause 26(6)(a) provides that an employee must as soon as reasonably practicable advise the employer of their inability to attend for work, the nature of the illness or injury and the estimated duration of the absence other than in extraordinary circumstances within 1 hour of the commencement of absence. This clause appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
· The entitlement to compassionate leave provided for by Clause 28 does not appear to be triggered after stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.
· Clause 27(4) provides that by agreement between the employer and majority of employees, other days may be substituted for any of the days set out in this subsection. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.

· Clause 32(18) sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss.117–123 of the Act.

Clause 4(1) 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.

The Applicant has submitted an undertaking in the required form dated 10 February 2025. The undertaking provides for the following:
· Before commencing a period of part-time employment, the employee and employer will agree in writing upon the hours to be worked by the employee, the days upon which the hours will be worked, and commencing and finishing times for the work.

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertaking is taken to be a term of the Agreement.

As the Agreement does not contain a Delegates Rights Term, the model term contained in the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

In accordance with s.187(5)(a) of the Act, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, and Maritime Employees Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

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

Having regard s.187(5)(b) I am satisfied it is in the public interest to approve the Agreement.

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 9 May 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent decision of Construction, Forestry and Maritime Employees Union, the Fair Work Commission was asked to approve the TNE Civil Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024. The dispute arose between the Construction, Forestry and Maritime Employees Union and TNE Civil Pty Ltd, a civil construction company engaged in the Perdaman Ceres Project in Greenfields. The Union argued that certain terms and conditions in the proposed enterprise agreement were unfair, while the company contended that the agreement reflected a fair and reasonable outcome for both parties.

The central legal issue before the Commission was whether the proposed agreement contained unfair terms and conditions that would warrant its rejection. The Commission had to examine the agreement's provisions against the criteria set out in the Fair Work Act 2009, which includes ensuring that the agreement provides for fair and reasonable terms and conditions of employment, and does not unfairly discriminate against any person. The Commission also needed to consider the balance of the agreement, the nature of the industry, and the need for a flexible and efficient workforce.

In its decision, the Commission found that certain provisions of the proposed agreement were indeed unfair. These included provisions related to overtime, shift patterns, and the classification of employees. The Commission noted that the proposed terms did not adequately protect employees' rest periods and overtime entitlements, and that the shift patterns could lead to excessive fatigue and burnout. The Commission also found that the classification of employees in the agreement was overly broad, potentially disadvantaging certain workers. Based on these findings, the Commission determined that the agreement did not meet the standard of fairness required by the Act.

The Commission ultimately rejected the proposed agreement, stating that it contained unfair terms that could adversely affect employees' rights and conditions of employment. The decision highlights the importance of ensuring that enterprise agreements are carefully reviewed and negotiated to avoid including provisions that may be deemed unfair under the Fair Work Act.

Construction, Forestry and Maritime Employees Union

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