Constructive PD Pty Ltd T/A Constructive PD

[2023] FWCA 2050

[2023] FWCA 2050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Constructive PD Pty Ltd T/A Constructive PD

(AG2023/2054)

CONSTRUCTIVE PD PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 5 JULY 2023

Application for approval of the Constructive PD Pty Ltd Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Constructive PD Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Constructive PD Pty Ltd T/A Constructive PD. The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The agreement was made after 6 June 2023.

1. The Employer 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. The undertakings are taken to be a term of the agreement.

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

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 25.8 – Termination of Employment: Abandonment; and

·           Clause 32.1 – Compassionate Leave.

However, noting clause 5.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 July 2023. The nominal expiry date of the Agreement is 5 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE520643  PR763946>

Annexure A