Fern Form Construction NSW Pty Ltd

[2025] FWCA 696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fern Form Construction NSW Pty Ltd

(AG2025/161)

FERN FORM CONSTRUCTION NSW PTY LTD ENTERPRISE AGREEMENT 2025 - 2029

Building, metal and civil construction industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 21 FEBRUARY 2025

Application for approval of the Fern Form Construction NSW Pty Ltd Enterprise Agreement 2025 - 2029

Introduction

Fern Form Construction NSW Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Fern Form Construction NSW Pty Ltd Enterprise Agreement 2025 - 2029 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

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 Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 26 November 2024 and the Agreement was made on 15 January 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) Precedence Term

Clause 9.5.2 of the Agreement provides that an employee who takes personal, carers’ or compassionate leave is to provide notice to the employer of their taking of the leave by 7:00 AM on the first day of the absence, or as soon as reasonable practicable after this time. The first component of this clause appears to be more restrictive than the equivalent provision in s.107(2) of the Act, which states that notice for these leave types is to be given to the employer as soon as practicable, which may be a time after the leave has started. To the extent that this clause may be inconsistent with the NES, I note that in accordance with the NES precedence term in Clause 3.4.4. of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, and having had regard to the Statement of Principles on Genuine Agreement, 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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 February 2025. The nominal expiry date of the Agreement is 21 February 2029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

Fern Form Construction NSW Pty Ltd applied to the Fair Work Commission for the approval of an enterprise agreement. The matter was heard by the Commission, which was required to determine whether the agreement complied with the necessary legislative requirements. The applicant sought to implement an enterprise agreement covering employees within the formwork industry in New South Wales. The dispute primarily centred around whether the proposed agreement met the statutory criteria for approval, including its compliance with the Fair Work Act 2009 and the Fair Work Regulations 2009.

The Commission considered whether the agreement provided for proper bargaining, covered the requisite employee groups, and included all necessary provisions. It was also necessary to evaluate if the agreement adequately addressed minimum entitlements and other standards as prescribed by the Fair Work Act. The applicant argued that the agreement was the product of genuine negotiations and met all legislative requirements. The Commission assessed these submissions and examined the contents of the proposed agreement.

Upon review, the Commission found that the agreement met the necessary criteria for approval. The Commission was satisfied that the agreement resulted from genuine bargaining and covered the specified employee groups. The proposed terms and conditions were deemed to be fair and reasonable, with adequate provisions for minimum entitlements. Consequently, the Commission approved the enterprise agreement, subject to its registration by the Registrar of the Fair Work Commission. This decision ensured that the agreement would be legally binding and enforceable under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established