Ferrovial Construction (Australia) Pty Ltd

[2023] FWCA 2182

[2023] FWCA 2182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ferrovial Construction (Australia) Pty Ltd

(AG2023/2188)

FERROVIAL CONSTRUCTION AUSTRALIA COFFS HARBOUR BYPASS AWU & CFMMEU CIVILWORKS GREENFIELD AGREEMENT 2023-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 14 JULY 2023

Application for approval of the Ferrovial Construction Australia Coffs Harbour Bypass AWU & CFMMEU Civil Works Greenfield Agreement 2023 - 2027

1. An application has been made for approval of an enterprise agreement known as the Ferrovial Construction Australia Coffs Harbour Bypass AWU & CFMMEU Civil Works Greenfield Agreement 2023 - 2027 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a greenfields agreement.

1. 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.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 23 June 2023.

1. The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

1. Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. Based on the statutory declaration provided by each organisation, I am satisfied that The Australian Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union 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 satisfied that each organisation was a bargaining representative for the Agreement. I note that the Agreement covers The Australian Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union.

1. I am satisfied that the Agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.

1. I am satisfied that it is in the public interest to approve the Agreement.

1. The Agreement is approved and, in accordance with section 54 of the Act, will operate from 21 July 2023. The nominal expiry date of the Agreement is 13 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE520769  PR764261>

Annexure A