J. Mac Constructions Pty Ltd

[2021] FWCA 6069

[2021] FWCA 6069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

J. Mac Constructions Pty Ltd
(AG2021/7444)

JMAC CONSTRUCTIONS PTY LTD LANDSCAPING ENTERPRISE AGREEMENT 2021

Gardening services
COMMISSIONER MATHESON	SYDNEY, 30 SEPTEMBER 2021

Application for approval of the JMac Constructions Pty Ltd Landscaping Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the JMac Constructions Pty Ltd Landscaping Enterprise Agreement 2021 (Agreement). The application was made by J. Mac Constructions Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] Clause 1 of the Agreement names the employer as ‘JMac Constructions Pty Ltd’. The Applicant sought a correction to the Agreement pursuant to s.586 of the Act to reflect the name of the Applicant as the correct employing entity. In particular, the Applicant sought an amendment so that clause 1 of the Agreement would read:

‘The parties to the agreement will be as follows;

● J. Mac Constructions Pty Ltd as the Employer, and

● The employees of J. Mac Constructions Pty Ltd engaged in the classifications contained herein.’

[3] I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act. I make the amendment.

[4] A Form F17 has been filed in support of the application. The Form F17 describes the steps taken by the Applicant to comply with s.180(2) of the Act. The Commission sought further information regarding whether, pursuant to s.180(2) of the Act, materials incorporated by reference in the agreement were given to employees or whether employees had access to a copy of those materials. The Applicant provided a copy of a notification containing links to documents referenced in the Agreement. Based on the materials before the Commission, I am satisfied that the requirements of s.180(2) of the Act have been met.

[5]  The Form F17 also describes the steps taken by the Applicant to explain the terms of the Agreement and the effect of the terms to employees as required by s.180(5) of the Act. The Commission sought further information regarding the content of these explanations and further information was provided by the Applicant. Based on the materials before the Commission, I am satisfied that the requirements of s.180(5) of the Act have been met.

[6] The Applicant 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 a substantial change to the Agreement. The undertakings are taken to be a term of the Agreement.

[7] I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.  

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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Annexure A