Ferrycarrig Construction Pty Ltd

[2025] FWCA 1562

[2025] FWCA 1562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ferrycarrig Construction Pty Ltd

(AG2025/1301)

FERRYCARRIG CONSTRUCTION ENTERPRISE AGREEMENT 2025-2029

Building, metal and civil construction industries
COMMISSIONER REDFORD	MELBOURNE, 13 MAY 2025

Application for approval of the Ferrycarrig Construction Enterprise Agreement 2025-2029

1. An application has been made for approval of an enterprise agreement known as the Ferrycarrig Construction Enterprise Agreement 2025-2029 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ferrycarrig Construction Pty Ltd (Ferrycarrig). The Agreement is a single enterprise agreement.

Undertakings

1. In response to several issues raised with Ferrycarrig Construction Pty Ltd in relation to its application, it has provided written undertakings, a copy of which are 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. 

1. The undertakings relate to: 

1. The interaction between the Agreement and the National Employment Standards (NES).

National Employment Standards

1. Ferrycarrig has provided an undertaking in relation to the interaction between the Agreement and the NES. This undertaking, which is taken to be a term of the Agreement pursuant to s 191(1) of the Act, provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency. 

1. On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:    

1. Clauses 23.5 and 23.6 of the Agreement provides that an employee absent from work due to personal leave is required to attend the office to complete a Company Sick Leave form. Section s 107 of the Act provides for an entitlement to personal leave as part of the NES. There is no requirement that an employee attend an employer’s office to sign a form. Accordingly, as a result of the NES undertaking, employees covered by the Agreement will be entitled to personal leave through the operation of the NES even in circumstances where, for some reason, they do not attend the office and sign a form.

2. Clause 35.5.2 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however taking into account the NES undertaking, this clause will have no effect to the extent of any inconsistency.

Consideration

1. Subject to the undertakings referred to above, 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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ANNEXURE A