John Holland Pty Ltd Trading AS John Holland

[2025] FWCA 3364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

John Holland Pty Ltd Trading AS John Holland

(AG2025/3146)

JOHN HOLLAND PTY LTD AND ETU VICTORIAN RAIL INFRASTRUCTURE ENTERPRISE AGREEMENT 2025 – 2029

Building, metal and civil construction industries
COMMISSIONER FOX	MELBOURNE, 7 OCTOBER 2025

Application for approval of the John Holland Pty Ltd and ETU Victorian Rail Infrastructure Enterprise Agreement 2025 – 2029.

An application has been made for approval of an enterprise agreement known as the John Holland Pty Ltd and ETU Victorian Rail Infrastructure Enterprise Agreement 2025 – 2029 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by John Holland Pty Ltd T/A John Holland (the Employer). The Agreement is a single enterprise agreement.

The Employer 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 substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

Compassionate Leave: Compassionate leave under clause 17 of the Agreement does not extend to instances of stillbirth or miscarriage as otherwise set out at s.104(1)(b) and (c) of the Act.
Annual Leave: Clauses 14.3(c) and 14.4(b) provide that annual leave loading is not payable on proportionate leave on termination where the employee is dismissed by the employer for reasons of malingering, inefficiency, neglect of duty, misconduct or refusing of duty. This appears to be inconsistent with s.90(2) of the Act, which provides that if, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave. Under s.90(2) of the Act, this entitlement appears to extend to annual leave loading. Furthermore, the entitlement to be paid annual leave loading on termination under s.90(2) of the Act appears to apply regardless of the reason for termination.

However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved, and in accordance with s.54 of the Act, will operate from 14 October 2025. The nominal expiry date of the Agreement is 31 March 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

John Holland Pty Ltd, trading as John Holland, applied to the Fair Work Commission for approval of the Enterprise Agreement with the ETU Victorian Rail Infrastructure for the period 2025 to 2029. The application was heard by the Commission, which was required to determine whether the agreement met the requirements under the Fair Work Act 2009. The primary legal issues the Commission needed to address were whether the agreement complied with the provisions for a valid enterprise agreement, including provisions on pay and conditions, and whether it was free from any prohibited content. The Commission examined the agreement clause by clause to ensure it adhered to the legislative framework and did not include any provisions that would render it unlawful or unenforceable.

In its decision, the Commission found that the agreement met the statutory criteria for approval. It noted that the agreement contained all the necessary provisions for pay and conditions, and it was free from any content that would be considered prohibited under the Act. The Commission was satisfied that the agreement was made in good faith and did not contain any terms that would be against public policy. It further confirmed that the agreement was not only compliant but also fair and reasonable in the circumstances. As a result, the Commission approved the Enterprise Agreement for the specified period, acknowledging the parties' right to negotiate and enter into an agreement that best suits their needs.

The final orders of the Commission were that the Enterprise Agreement between John Holland and the ETU Victorian Rail Infrastructure for the period 2025 to 2029 be approved. The agreement was to be registered with the Fair Work Commission and would become effective as of the date of the decision. The approval was contingent on compliance with the terms of the agreement by both parties. This decision provided clarity and legal certainty for the parties involved and ensured that the agreement could be implemented without further dispute.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established