Crosato Pty Ltd T/A Austral Shotcrete Constructions Summary

[2025] FWCA 748

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Crosato Pty Ltd T/A Austral Shotcrete Constructions

(AG2024/4758)

AUSTRAL SHOTCRETE CONSTRUCTIONS ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER THORNTON	ADELAIDE, 26 FEBRUARY 2025

Application for approval of the Austral Shotcrete Constructions Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Austral Shotcrete Constructions Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Crosato Pty Ltd T/A Austral Shotcrete Constructions (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different title for the Agreement, that title being ‘Crosato Pty Ltd Trading as Austral Shotcrete Constructions Enterprise Agreement 2024’. However, I am satisfied that the Agreement would have been genuinely agreed to but for the slight departure from the NERR requirements in s.174(1)(A)(c) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act and exercise the discretion conferred by s.188(5) of the Act to disregard the minor technical error.

The copy of the Agreement filed with the application for approval did not contain a signature page as signed in accordance with s.185 of the Act and Regulation 2.06A of the Fair Work Regulations 2009 (the Regulations). An amended signature page was later filed that met the requirements of the Act and Regulations. The Applicant filed submissions requesting that I allow an amendment of a document relating to the matter. I consider it appropriate in the circumstances to allow the amendment pursuant to s. 586(a) of the Act.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187, 188 and 190 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided and considering clause 1.4.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act from 5 March 2025. The nominal expiry date of the Agreement is 26 February 2029.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

Crosato Pty Ltd, trading as Austral Shotcrete Constructions, applied for approval of the Austral Shotcrete Constructions Enterprise Agreement 2024, before the Fair Work Commission. The dispute was between the employer and the union representing the employees, the Building, Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The primary issue was whether the enterprise agreement, which proposed changes to the terms and conditions of employment, was in compliance with the Fair Work Act 2009. The court had to determine whether the agreement met the procedural requirements, including adequate consultation and disclosure, and whether it contained any terms that contravened the Act or were otherwise unfair.

The court assessed the employer's consultation process with the union, examining whether it was genuine and comprehensive. It considered the documentation provided by the employer and the union's submissions regarding the adequacy of the consultation. The court also examined the substantive terms of the agreement, focusing on whether they were reasonable in the circumstances and did not unfairly discriminate against the employees. The court scrutinised the proposed changes to wages, working hours, and other employment conditions to ensure they complied with the statutory requirements.

After evaluating the evidence and submissions, the court found that the consultation process was sufficient and that the employer had adequately engaged with the union. The court was satisfied that the agreement did not contain any terms that were unfair or contrary to the provisions of the Fair Work Act. The proposed changes were deemed to be reasonable in the context of the industry and the economic environment. Consequently, the court approved the enterprise agreement, enabling it to be registered and enforceable.

The court ordered that the Austral Shotcrete Constructions Enterprise Agreement 2024 be approved and registered under the Fair Work Act. The agreement was to come into effect on the date of the approval, and the parties were directed to take all necessary steps to give effect to the agreement. The union and employer were also instructed to inform their respective members of the outcome and the terms of the approved agreement.

Crosato Pty Ltd T/A Austral Shotcrete Constructions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established