JMK Construction Group Pty Ltd

[2025] FWCA 662

[2025] FWCA 662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

JMK Construction Group Pty Ltd

(AG2025/313)

JMK CONSTRUCTION GROUP PTY LTD ENTERPRISE AGREEMENT (TASMANIA) 2024-2028

Building, metal and civil construction industries
COMMISSIONER REDFORD	MELBOURNE, 21 FEBRUARY 2025

Application for approval of the JMK Construction Group Pty Ltd Enterprise Agreement (Tasmania) 2024-2028

1. An application has been made for approval of an enterprise agreement known as the JMK Construction Group Pty Ltd Enterprise Agreement (Tasmania) 2024-2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by JMK Construction Group Pty Ltd (JMK). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) distributed by JMK was not in the prescribed form, as the pre-reform version has been used. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error.

Interaction with the National Employment Standards

1. Clause 6.3 of the Agreement has the effect that if a superior provision is provided for in the National Employment Standards (NES) than applies under the agreement, the more superior provision applies (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Clause 34.2.4 of the Agreement provides that an employee taking personal leave should “as soon as possible” inform their manager of their inability to attend for duty. To the extent this requires a more onerous provision of notice than is required by the NES, I note that as a result of the NES precedence clause, the provisions of the NES will prevail – particularly in relation to, for example, s 107(2)(a) of the Act, which provides that notice may be given after the leave has commenced.

b.Clause 34.4 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

c.Clause 35.2 of the Agreement appears to provide that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees however, when read in conjunction with the NES precedence clause will have no effect to the extent of any inconsistency.

Consideration

1. Several matters relating to the manner in which employees covered by the Agreement were asked to approve it by voting for it were raised with JMK. Further submissions were made in relation to these matters and on the basis of those submissions 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 Construction, Forestry and Maritime Employees Union (CFMEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the CFMEU.

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

Typographical error and variation

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form).

1. It was identified that clause 14.3 of the Agreement, which deals with Daily Hire Employment refers to clause 11 of the Building and Construction General On-site Award 2020 instead of clause 9 of that Award. I am satisfied that this was an error, defect or irregularity of a kind that may be corrected by the power provided for in s 218A of the Act. There is no objection that I do so, and a variation will be made to that effect,[1] which will operate from the date the Agreement commences. 

COMMISSIONER

[1] PR784651

Printed by authority of the Commonwealth Government Printer

<AE528112  PR784550>