Fairbrother Pty Ltd

[2024] FWCA 4398

[2024] FWCA 4398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fairbrother Pty Ltd

(AG2024/4487)

FAIRBROTHER PTY LTD [FACILITY MANAGEMENT] TASMANIAN ENTERPRISE AGREEMENT 2024-2028

Building, metal and civil construction industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 10 DECEMBER 2024

Application for approval of the Fairbrother Pty Ltd [Facility Management] Tasmanian Enterprise Agreement 2024 - 2028

1. An application has been made for approval of an enterprise agreement known as the Fairbrother Pty Ltd [Facility Management] Tasmanian Enterprise Agreement 2024-2028 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Fairbrother Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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 requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).  

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 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: 

   • Clause 34.2.5 of the Agreement provides that if it is not practicable for the employee to give prior notice of the absence, the employee shall notify the Employer by telephone of such absence at the first opportunity on the day of absence. This appears to provide a more restrictive 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).
   • Clause 34.2.5 of the Agreement defines a family member for the purpose of carer’s leave however does not include “a child, parent, grandparent, grandchild or sibling of a spouse or   de   facto   partner of the person” which is narrower than the definition of “immediate family” in the Act.
   • Clause 34.2.5 provides that in normal circumstances an employee cannot take carer’s leave where another person has taken leave to care for the same person. The Act does not appear to impose this limitation.
   • Clause 34.2.5 provides that casuals may take unpaid carer’s leave by agreement. Section 102 of the Act provides employees with an entitlement to two days’ unpaid carer’s leave.
   • Clause 34.3.1 limits compassionate leave to death or life-threatening injury or illness within Australia. Section 104 of the Act does not appear to place a geographical restriction on the taking of leave.
   • Clause 35.2 of the Agreement provides the Employer and the employees may agree to substitute another day for any prescribed in this clause. For this purpose, the consent of the majority of affected employees covered by the Agreement shall constitute Agreement. 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.

1. Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Building and Construction General On-Site Award 2020 is taken to be a term of the Agreement.  

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 17 December 2024. The nominal expiry date of the Agreement is 3 February 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A