D&Z Constructions Pty Ltd T/A D&Z Constructions Pty Ltd

[2024] FWCA 881

[2024] FWCA 881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

D&Z Constructions Pty Ltd T/A D&Z Constructions Pty Ltd

(AG2024/405)

D&Z CONSTRUCTIONS PTY LTD KEMERTON LITHIUM HYDROXIDE PROCESSING PLANT – EXPANSION PROJECT GREENFIELDS AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 11 MARCH 2024

Application for approval of the D&Z Constructions Pty Ltd Kemerton Lithium Hydroxide Processing Plant – Expansion Project Greenfields Agreement

1. An application has been made for approval of a greenfields agreement known as the D&Z Constructions Pty Ltd Kemerton Lithium Hydroxide Processing Plant – Expansion Project Greenfields Agreement (the Agreement). The application was made by D&Z Constructions Pty Ltd T/A D&Z Constructions Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (the Act).

1. There were several issues identified where clauses of the Agreement appeared to operate contrary to the National Employment Standards (NES). Clause 42(2) of the Agreement provides that the employer and the majority of employees may agree to substitute a nominated public holiday to another day. This is inconsistent with s 115(3) of the Act which provides that such substitution may only occur by agreement between the employer and an employee. Clause 45(3) of the Agreement provides five days of paid family and domestic violence leave. This is inconsistent with s 106A which provides 10 days of paid family and domestic violence leave. Clause 21(1) of the Agreement covers abandonment of employment but does not appear to provide for notice of termination. As such. there is an apparent inconsistency with s 117 of the Act. Clause 43 of the Agreement provides for compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies, however it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by ss 104(1)(b) and (c) of the Act.

1. Although it appears that these clauses, in part, are contrary to various provisions of the NES in Part 2-2 of the Act, I am satisfied that such issues are resolved by clause 4.3 of the Agreement.

1. This 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. In accordance with s 187(5)(a) of the Act, I am satisfied that the Construction, Forestry and Maritime Employees Union (CFMEU), The Australian Workers' Union (AWU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

1. The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and is taken to be a term of it.

1. Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the CFMEU, the AWU and the AMWU, and that the Agreement covers these organisations.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 18 March 2024. The nominal expiry date of the Agreement is 11 March 2028.

DEPUTY PRESIDENT

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