Fern Form Construction NSW Pty Ltd
[2025] FWCA 696
•21 FEBRUARY 2025
| [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
<AE528141 PR784660>
ANNEXURE A
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