John Holland Queensland Pty Ltd

[2025] FWCA 2677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

John Holland Queensland Pty Ltd

(AG2025/1652)

DELIVERING FOR CUSTOMERS – ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 11 AUGUST 2025

Application for approval of the Delivering for Customers - Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the Delivering for Customers Enterprise Agreement 2025 (Agreement). The application was made by John Holland Queensland Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

The Agreement is a single enterprise agreement and covers three employers being John Holland Queensland Pty Ltd (ABN 67 133 069 280), Service Stream Maintenance Pty Ltd (ABN 87 081 540 847) and Service Stream Utilities Pty Ltd (ABN 50 092 035 419). These employers can make a single enterprise agreement pursuant to s.172(2) of the Act because they are engaged in a joint venture and common enterprise and are ‘related employers’ as defined in s.172(5A) of the Act.

The Construction, Forestry and Maritime Employees Union (CFMEU) and Australian Workers’ Union (AWU) were bargaining representatives for the Agreement. There were also 10 employee bargaining representatives.

An error was made in the Form F16 application and accompanying Form F17B declaration in that the employers covered by the Agreement were incorrectly stated. The Applicant subsequently filed amended Forms F16 and F17B which correctly identified the employers covered by the Agreement. Pursuant to s.586 of the Act, I allowed the correction to the Form F16 application and Form F17B declaration.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Consultation term

Section 205(1) of the Act provides that an enterprise agreement must include a term (a consultation term) that:

(a)requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about:
(i)a major workplace change that is likely to have a significant effect on the employees; or
(ii)a change to their regular roster or ordinary hours of work; and

(b)allows for representation of those employees for the purposes of that consultation.

Section 205(1A) of the Act provides that for a change to the employees’ regular roster or ordinary hours or work, the term must require the employer:

(a)to provide information to the employees about the change; and
(b)to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
(c)to consider any views given by the employees about the impact of the change.

Section 205(2) provides that if an enterprise agreement does not include a consultation term, or if the consultation term is an objectionable management term, the model consultation term is taken to be a term of the Agreement.

Clause 1.8 of the Agreement is entitled ‘Consultation’ and states:

‘1.8     Consultation
1.8.1    This term applies if the employer:
(a)    has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or
(b)    proposes to introduce a change to the regular roster or ordinary hours of work of employees.

Major change

1.8.2 For a major change referred to in paragraph 1(a):

(a) the employer must notify the employees of the decision to introduce the major change; and
(b) subclauses (3) to (9) apply.

1.8.3The relevant employees may appoint a representative for the purposes of the procedures in this term.
1.8.4If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.

1.8.5 As soon as practicable after making its decision, the employer must:
(a) discuss with the relevant employees:
(i)the introduction of the change; and
(ii)the effect the change is likely to have on the employees; and
(iii)measures the employer is taking to avert or mitigate the adverse effect of the change on employees; and

(b) for the purposes of the discussion – provide, in writing, to the relevant employees:
(i)all relevant information about the change including the nature of the change proposed; and
(ii)information about the expected effects of the change on the employees; and
(iii)any other matters likely to affect the employees/

1.8.6However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
1.8.7 The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
1.8.8If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph 2(a) and subclauses (3) and (5) are taken not to apply.
1.8.9In this term, a major change is likely to have a significant effect on employees if it results in:
(a)    the termination of the employment of employees; or
(b)    major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or
(c)    the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d)    the alteration of hours of work; or
(e)    the need to retrain employees; or
(f)     the need to relocate employees to another workplace; or
(g)    the restructuring of jobs.

Change to regular roster or ordinary hours of work

1.8.10 For a change referred to in paragraph (1)(b):
(a) the employer must notify the relevant employees of the proposed change; and
(b) subclauses (11) to (15) apply.

1.8.11The relevant employees may appoint a representative for the purposes of the procedures in this term.
1.8.12If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation and
(b) the employee or employees advise the employer of the identity of the representative;
the employer must recognise the representative.

1.8.13As soon as practicable after proposing to introduce the change, the employer must:

(a)    discuss with the relevant employees the introduction of the change; and
(b)    for the purposes of the discussion--provide to the relevant employees:
(i)    all relevant information about the change, including the nature of the change; and
(ii) information about what the employer reasonably believes will be the effects of the change on the employees; and
(iii)   information about any other matters that the employer reasonably believes are likely to affect the employees; and

(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).
1.8.14 However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

1.8.15 The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.
1.8.16 In this term “relevant employees” means the employees who may be affected by a change referred to in subclause (1)’

The CFMEU noted that the Agreement’s consultation term reflects the model term as it was prior to the determination of the Re Model terms for enterprise agreements and copied State instruments.[1] The CFMEU expressed the view that the clause is not consistent with the model term in that:

· the term “discuss” was replaced with “consult” in the model term to make it clear that the obligation is intended to include discussion, receipt of feedback and consideration of contributions made by employees and their representatives; and
· the new model term also includes obligations of the employer to provide reasons for or justification of the change (clause 6(b)(ii)) and a requirement to take reasonable steps to communicate the outcome of the consultation process, including the consideration that was given to matters raised about the major workplace change by the relevant employees and their representatives (if any) (clause 9).

The Applicant submitted the consultation provision set out in clause 1.8 of the Agreement satisfies the requirements of section 205(1) of the Act. It submitted that accordingly, the model consultation provision contemplated under section 205(2) of the Act and currently reflected in the Determination of the Commission in Re Model Terms for Enterprise Agreements and Copied State Instruments,[2] should not be considered a term of the Agreement.

While there are differences between the new model term and the consultation term in clause 1.8 of the Agreement, it does not automatically follow that the consultation term in clause 1.8 of the Agreement does not meet the requirements of s.205(1).

Clause 1.8 of the Agreement is concerned with ‘consultation’ and the term ‘discuss’ appearing in clause 1.8.5 is, in my view, a subset of the broader consultation process as set out in clause 1.8. In my view, and as the heading to clause 1.8 contemplates, clause 1.8:

(c)does require the employers to which the Agreement applies to consult the employees to whom the agreement applies about:
(iii)a major workplace change that is likely to have a significant effect on the employees (clauses 1.8.2, 1.8.5, 1.8.7); or
(iv)a change to their regular roster or ordinary hours of work (clauses 1.8.10, 1.8.13, 1.8.15)); and

(d)allows for representation of those employees for the purposes of that consultation (clauses 1.8.3 and 1.8.4).

In relation to changes to the regular roster or ordinary hours of work, clause 205(1A) requires the employers to:

(a)provide information to the employees about the change (clause 1.8.13(b)); and
(b)invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities) (clause 1.8.13(c)); and
(c)consider any views given by the employees about the impact of the change (clause 1.8.15).

As such, I find that the Agreement includes a consultation term that meets the requirements of s.205(1) of the Act.

National Employment Standards

Clause 1.4.4 of the Agreement states:

‘This Agreement operates to the exclusion of the Award or any modern award or industrial instrument. Legislation (including the NES) or employer policy referred to in this Agreement is not incorporated into the Agreement’.

Clause 1.4.5 of the Agreement goes on to state:
‘This Agreement is to be read and interpreted in conjunction with the NES. Where there is any inconsistency between the Agreement and the NES, the more beneficial provision to an employee will take precedence.”

The AWU raised a concern about clause 1.4.4, stating that it is unclear how the exclusion of the NES provisions would leave employees better off.

The employers covered by the Agreement provided an undertaking (Undertaking 1) to address this concern and which states:

‘Notwithstanding clause 1.4.4 of the Agreement, the employer acknowledges that this Agreement will operate in accordance with sections 55 and 56 of the Fair Work Act 2009 (Cth) (Act), including that this Agreement will not exclude the National Employment Standards (NES).’

I am satisfied that Undertaking 1, together with clause 1.4.5 of the Agreement, will have the effect that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Better off overall test

The Building and Construction General On-site Award 2020 (Award) is the relevant test for the purposes of the better off overall test (BOOT). BOOT concerns were raised, and I deal with those concerns below. The employers covered by the Agreement provided undertakings in respect of most of those concerns and the views of the bargaining representatives were sought in relation to the undertakings.

BOOT concerns – undertakings provided

Stage 1 apprentices

The Commission and AWU raised a concern that first year/stage 1 apprentices were not better off overall under the Agreement. The employers covered by the Agreement provided an undertaking (Undertaking 2) to address this concern and I am satisfied that it does so.

Ordinary hours

Clause 4.1.1 of the Agreement provides:

‘Except as provided in subclause 4.6 – ‘Shiftwork’, the ordinary hours of work will be 38 per week, worked between 6.00am and 6.00pm (i.e. the “spread of hours), Monday to Sunday’.

The AWU raised a concern that this is less beneficial than clause 16.1 of the Award which provides for a spread of hours of 7.00am to 6.00pm Monday to Sunday. In particular, clause 16.1 of the Award states:

‘Except as provided in clause 17—Shiftwork, the ordinary working hours will be 38 per week (averaged over a 20 day 4 week cycle to allow for the accrual and taking of rostered days off (RDO)), worked between 7.00 am and 6.00 pm Monday to Friday in accordance with the procedures in clauses 16.2to 16.7.”

The AWUsubmitted that there is a detriment in that employees would have received penalty rates under the Award.

In this respect:

clause 29.4(a) of the Award provides: “All time worked beyond an employee’s ordinary working hours (inclusive of time worked for accrual purposes as prescribed in clauses 16 — Ordinary hours of work and 17 — Shiftwork), Monday to Friday, must be paid for at the rate of 150% of the ordinary hourly rate for the first 2 hours and 200% thereafter”; and
- clause 30.1 of the Award provides for payment of overtime:

In comparison, the Agreement provides that:

“Other than where an employee is engaged in shiftwork (pursuant to clause 4.6 Shiftwork), overtime will be payable for all work performed outside of ordinary hours prescribed at clause 4.1” (clause 4.3.1)
“All time worked beyond an employee’s ordinary time of work (inclusive of time worked for accrual purposes as prescribed in clauses 4.1 - Ordinary hours of work), Monday to Friday, must be paid for at the rate of time and a half for the first two hours and at double time thereafter” (clause 4.3.3).
“All work performed on a Saturday, Sunday, or a public holiday will be paid in accordance with clause 4.5 - Penalty rates” (clause 4.3.4).
“Time worked on Saturday must be paid for at the rate of time and a half for the first two hours and double time thereafter, provided that all overtime worked after 12 noon on Saturday must be paid for at the rate of double time” (clause 4.5.1(a)).
“All time worked on Sundays must be paid for at the rate of double time…” (clause 4.5.2).

Having further compared provisions of the Agreement and Award, there was a residual concern regarding whether employees required to start at 6am, rather than 7am are better off overall, noting that, clause 16.11(a) of the Award provides:

“The working day may start at 6.00am or at any time between that hour and 8.00am and the working time will then begin to run from the time fixed, and the meal break will be adjusted accordingly. The change to the start time requires agreement between the employer and the employees and their representative(s), if requested”.

The employers covered by the Agreement provided an undertaking to address circumstances where employees commence at 6am (Undertaking 3). I am satisfied it addresses the concern.

Hours per day

The Agreement provides for employees to work up to 10 hours or 12 hours as per clause 4.1.3 which states:

‘4.1.3 The maximum ordinary hours that may be worked in any day is:

(a) 8 hours; or
(b) up to 10 hours; or
(c) 12 hours by agreement of the employer and an individual employee or the majority of the employees concerned.;

In comparison, clause 16.2 of the Award appears to restrict ordinary hours to 8 hours per day as follows:

‘Ordinary working hours will be 8 hours in duration each day, of which 0.4 of one hour of each day worked will accrue towards an RDO and 7.6 hours will be paid. An employee will therefore accrue 7.6 hours towards an RDO each 19 days of ordinary hours worked’.

Clause 29.4 of the Award provides for employees to be paid overtime when working beyond the ordinary hours in that Award which would include working in excess of 8 hours in a day.

The Commission and AWU raised the concern that employees may not be better off overall in these circumstances.

The employers covered by the Agreement provided an undertaking to address this concern and which provides that the maximum ordinary hours that may be worked in any day is 8 hours (Undertaking 4). I am satisfied it addresses the concern.

Scheduling RDOs

Clause 4.2(c)(i) of the Agreement provides:

‘In consultation with the Employer, the Consultative Committee will agree upon an annual roster for RDO’s, to be published at the commencement of each Calendar year.
The rostered day off calendar shall designate;

(1)       Six (6) days of the Calendar Year which shall be deemed fixed RDOs;
(2)       Seven (7) days of the Calendar Year which shall be deemed flexible RDOs;
(3)       For the avoidance of doubt, the Employer, at its absolute discretion, may vary
  the rostered day off calendar from year-to-year.
(4) The Employer may request an Employee to work on a fixed RDO, by providing a minimum of one (1) weeks notice. Where an Employee works on a fixed RDO, they will be permitted to takje (sic) their RDO on an alternate day, through mutual agreement’.

The AWU raised the concern that clarification is required where an RDO has been scheduled on a public holiday.

In response the employers covered by the Agreement have provided an undertaking not to schedule any RDOs on a gazetted public holiday in New South Wales (Undertaking 5). I am satisfied that it addresses the concern.

Shift allowances

The AWU has raised a concern that the Shift Allowances in clause 4.6.6 of the Agreement are inconsistent with and less beneficial than the provisions of the Award and provided a table in support of this. Having considered the shift allowances in the Agreement and Award, the Commission raised the concern that it is unclear how employees working Afternoon Shifts and Early Morning Shifts are better off overall. The Commissioner invited submissions and/or an undertaking to address the concern.

Taking into account Undertaking 2, all rates of pay under the Agreement are above those in the Award. In this regard, the Applicant submitted that lower shift penalties in the Agreement as compared to the Award are not automatically less beneficial than the Award, when for example the percentage penalties are applied to the higher rates of pay under the Agreement.

The Applicant also submitted that the AWU had erroneously raised shiftwork provisions in the Award that do not apply to the Agreement. Specifically, it submitted the provisions of clause 17.1 of the Award apply only to the ‘General building and construction and metal and engineering construction sectors’ whereas the relevant shiftwork provisions under the Award in relation to the BOOT assessment for the Agreement are the ‘Civil construction sector’ terms under clause 17.2 of the Award. The Applicant submitted that in this regard:

The shift penalties in the Agreement are more beneficial to employees than the corresponding relevant civil construction shiftwork provisions in the Award.
In respect of night shift arrangements, the shift penalty in the Agreement is more beneficial (50 percent as per clause 4.6.6(b) of the Agreement) as compared to the Award (15 percent as per clause 17.2(j) of the Award).

Notwithstanding this, the Commission raised that clause 17.2(j) of the Award in relation to civil construction provides that a shift that commences at 10am attracts a 15 percent afternoon shift allowances as clause 17.2(a) defines an afternoon shift as “any shift starting at or after 10.00am and before 8.00pm” whereas the Agreement did not provide a shift penalty for a shift starting at or after 10am and before 12 noon. Commission modelling indicated that the CW1 classification was not better off overall in these circumstances.

The Applicant provided an undertaking to apply clause 4.6.1 of the Agreement on the basis that ‘Afternoon shift’ means a shift starting at or after 10.00am and before 8.00pm (as opposed to the current wording under which ‘Afternoon shift’ starts at or after 12 noon) (Undertaking 6). I am satisfied that it addresses the concern.

Motor vehicle allowance

The AWU and CFMEU raised that the motor vehicle allowance in the Agreement (item A2.3 of Appendix 2) is less beneficial than the modern award allowance of 98 cents per kilometre (clause 26.2 of the Award). To address the concern the Applicant provided an undertaking to apply the vehicle allowance rate set out in clause 26.2(b)(ii) of the Award as amended from time to time (Undertaking 7). I am satisfied that Undertaking 7 addresses the concern.

Superannuation

Clause 28.5 of the Award provides as follows:

‘28.5 Absence from work
Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided for in clause 28.2 and pay the amount authorised under clauses 28.3(a) or 28.3(b) :
(a) Paid leave— while the employee is on any paid leave;
(b) Work-related injury or illness —for the period of absence from work (subject to a maximum of 52 weeks) of the employee due to work-related injury or work-related illness provided that:
(i) the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with the statutory requirements; and

(ii) the employee remains employed by the employer.”

Clause 5 of the Agreement deals with ‘Leave, Income Protection and Public Holidays’. The CFMEU has raised a concern that the provisions in clause 5 are silent about the requirement in the Award to make superannuation requirements while an employee is on paid leave or is absent due to a work-related injury or illness and is receiving workers compensation payments or regular payments from the employer.

To address the matter raised by the CFMEU in respect of superannuation, the Applicant provided an undertaking that would require the employer to make the superannuation contributions provided for in clause 3.2.2 of the Agreement in accordance with clause 28.5 of the Award (i.e. in respect of paid leave, and eligible work-related injury or illness) (Undertaking 8). I am satisfied that Undertaking 8 addresses the concern.

Distant work

Clause 26.1 of the Award provides:

In recognition of the travel patterns and costs peculiar to the industry, which include mobility in employment and the nature of employment on construction work, an employee is to be paid an allowance of $21.94 per day for each day worked when the employee starts and finishes work on a construction site, or is required to perform prefabricated work in an open yard and is then required to erect or fix on-site.
An employee will not be entitled to the allowance in clause 26.1(a) on any day where the employer:

provides or offers to provide transport free of charge from the employee’s home to the place of work and return; or
provides a fully maintainedvehicle free of charge to the employee.

Clause 26.4 of the Award also provides:

If an employee is required to travel to a construction site that is:

not located in a metropolitan radial area in which the employee’s usual place of residence is located; and
more than 50 kms by road from the employee’s usual place of residence;
the employee will be entitled to the distant work payment in clause 26.4(b) instead of the allowance in clause 26.1.

The distant work payment is:

payment for the time outside ordinary working hours reasonably spent in travel, paid at the ordinary time hourly rate, calculated to the next quarter of an hour, and with a minimum payment of one half an hour per day for each return journey; and
any expenses necessarily and reasonably incurred in such travel, which will be $0.59 per kilometre where the employee uses their own vehicle.

Despite clause 26.4(a), the distant work payment is not payable when, at the commencement of employment, the employee’s usual place of residence was more than 50km by road from the construction site on which the employee was initially engaged.
In this subclause, a metropolitan radial area is the area within a radius of 50 kilometres of:

the GPO of a capital city of a State or Territory; or
the principal post office in a regional city or town in a State or Territory.

In comparison clause 3.3.3 of the Agreement provides a flat fares and travel allowance of $23.85 per day from 1 July 2024, and $26.00 from 1 July 2025, as specified in item A2.3 of Appendix 2.

The CFMEU raised a BOOT concern that the Agreement does not provide any additional compensation for employees required to travel more than 50 kilometres from their place of residence to the site.

The Applicant provided BOOT modelling regarding distant work in respect of each classification under the Agreement together with an undertaking. The Applicant and CFMEU were not aligned regarding whether, based on that modelling, a CW4 day worker was better off under the Agreement in comparison to the Award. Notwithstanding this, the Applicant provided an undertaking (Undertaking 10) which extended the undertaking to capture CW4 employees performing day work. I am satisfied that Undertaking 10 addresses the concern.

Rostered shifts

Clause 17.2(a) of the Award defines a ‘rostered shift’ as ‘a shift of which the employee concerned has had at least 48 hours’ notice’. Clause 17.2(ii) provides that:

“All time worked by a shiftworker in excess of or outside of the ordinary hours (inclusive of time worked for accrual purposes), or on a shift other than a rostered shift, must be paid for at the rate of 200% of the ordinary hourly rate.”

In comparison, clause 4.6.1(d) of the Agreement provides:

“…Rostered shift means shift of which the employee concerned has had at least 48 hours’ notice. Such notice will not be required where urgent operational issues arise that relate to declared emergencies or weather events that need to be dealt with to ensure public safety”.

Clauses 4.6.4 (a) and (b) of the Agreement provides:

‘(a) Monday to Friday:

(i) All time worked by a shiftworker in excess of or outside the ordinary
hours (inclusive of time worked for accrual purposes) on a shift other than a rostered shift must be paid for at the rate of time and a half for the first two hours and double thereafter (emphasis added).

(ii) Provided that this will not apply when the overtime is worked by
arrangements between the employees themselves or for the purpose of effecting the customary rotation of shifts.

(b)Saturdays:

(i) Employees working shifts between midnight on Friday and midnight on
Saturday must be paid at the rate of time and a half (emphasis added).

There is, in effect, a penalty rate prescribed by clause 4.6.4(a)(i) in the Agreement for circumstances where less than 48 hours’ notice of a shift is provided in respect of shifts worked Monday to Friday. However, detriments arise when the Agreement provisions are compared to the Award provisions in that:

the first two hours are paid at time and a half rather than double time;
Saturday shifts would be paid at the rate of time and a half, even if 48 hours’ notice has not been provided;
there is an exception in clause 4.6.4(ii), including circumstances where the overtime is worked by arrangements between the employees themselves;
48 hours’ notice is not required where urgent operational issues arise that relate to declared emergencies or weather events that need to be dealt with to ensure public safety.

The Commission noted that a BOOT concern arises in circumstances where:

an employee works only Saturday shifts;
an employee works very short shifts such that the effect of the lower penalty rates is not amortised in the way that it would be across a longer shift;
urgent operational issues arise that relate to declared emergencies or weather events that need to be dealt with to ensure public safety such that no penalty is paid for a shift in which less than 48 hours’ notice is provided.

A conference was held on 29 July 2025 in which the Applicant provided information about the likelihood of an employee working only Saturday shifts or very short shifts as described above. Following this conference the Applicant provided an undertaking which provides that where less than 48 hours’ notice of a shift is provided pursuant to clause 4.6.1(d), the employer undertakes to apply the overtime rates set out in clause 4.6.4(a)(i) of the Agreement in respect of that shift (Undertaking 9).

BOOT concerns – undertakings not provided

Redundancy

Clause 2.8 of the Agreement provides for redundancy to be paid at the greater amount of the NES or the amount the employer paid into the Australian Construction Industry Redundancy Trust (ACIRT). The Commission sought to understand if the provisions of the ACIRT are equal to or more beneficial than the industry specific redundancy scheme as per clause 41 of the Award.

The Applicant submits that the ACIRT contributions pursuant to clause 2.8 of the Agreement are substantially more beneficial to employees than clause 41 of the Award for the following reasons:

They are more beneficial because the yearly contributions are greater than what employees are entitled to under the NES (as set out in the table at A2.3, at $99.27 per week and to increase to $108.41 per week by 1 July 2027). By contrast, employees are entitled to redundancy pay in accordance with their years of service ranging from 2.4 weeks’ pay to 8 weeks’ pay, under clause 41 of the Award.
Secondly, employees’ entitlements to redundancy pay are capped at 8 weeks after 4 years under clause 41 of the Award. The ACIRT contributions under the Agreement are more beneficial than the redundancy pay provisions in the Award because they are not capped.

I am satisfied that the Applicant’s response addresses the concern.

Personal protective equipment and clothing

The CFMEU raised a concern that clause 6.2 of the Agreement is inconsistent with respect to the replacement of protective equipment and clothing, specifically work boots, as required by clause 21.1(d) of the Award, for the purposes of the BOOT.

Clause 6.2.1 of the Agreement provides that all clothing will be replaced at the employer’s discretion and on a fair wear and tear basis. In comparison, clause 21.1(d) of the Award provides that where the employer requires an employee to wear steel capped boots, the employer will reimburse employees for the cost of purchasing boots on commencement of work and subject to fair wear and tear, boots will be replaced each 6 months if required and sooner if agreed.

The Applicant again reiterated its submission that the BOOT is a global assessment, and not a ‘line by line’ analysis where relevant employees must be better off in every respect when comparing the Agreement to the Award, consistent with section 193A of the Act (noting for example the higher rates of pay in the Agreement).

The Applicant submitted that clause 6.2.1 of the Agreement is not less beneficial than clause 21.1(d) of the Award as under the Agreement, PPE will be provided to employees by the employer (which would include steel capped boots) and will be replaced at the discretion of the employer on a fair wear and tear basis.

Inclement weather

The AWU raised a concern that clause 6 of the Agreement requires employees to perform their full duties despite inclement weather and that this expectation undermines the intent of the inclement weather provisions and the Work Health and Safety Act.

The CFMEU also raised the concern that clause 6.1 is inconsistent with and lacks clarity compared to the clause 24 of the Award ‘particularly with respect to the introduction of unnecessary discretion’. In particular, the CFMEU identified that:

the Award provides for payment at double time when an employee is required to complete a concrete pour during inclement weather whereas the Agreement does not;
under clause 24.14 of the Award, where employees are unable to work for a defined period due to wet weather the employer cannot require employees to remain on site beyond these thresholds;
in the event of emergency work, under the Award employees have the right to go home if they become wet due to working in the rain and have no dry clothing however clause 6.1.7 of the Agreement allows employees to return home only after “critical work” is completed and the Agreement relies on the supervisor’s approval for an employee to leave and receive payment.

The Applicant:

rejected the AWU’s assertion that clause 6 of the Agreement requires employees to perform their full duties despite inclement weather and that this expectation undermines the intent of the inclement weather provisions and the Work Health and Safety Act, noting that clause 6.1.2 of the Agreement makes clear that this is in fact not the case under the Agreement;
submitted that the Agreement does not and cannot override the duties of employers, workers and PCBUs in accordance with applicable work health and safety legislation;
submitted that the thresholds for remaining on site as contained in clause 24.14 of the Award are materially similar to the thresholds in clause 6.1.4 of the Agreement.;
noted that the inclement weather provisions in the Agreement are more beneficial to employees than under the Award, in respect of affected employees being paid for their ordinary hours or shift during inclement weather (uncapped) (clause 6.1.6 of the Agreement), versus the Award which ‘caps’ inclement weather payments to affected employees (see clauses 24.7 and 24.8 of the Award); and
reiterated its submission that the BOOT is a global assessment, and not a ‘line by line’ analysis where relevant employees must be better off in every respect when comparing the Agreement to the Award, consistent with section 193A of the Act (noting for example the higher rates of pay in the Agreement).

As noted by the Applicant, clause 6.1.2 of the Agreement states:

“No Employee will be expected to work in unsafe or unreasonable conditions due to inclement weather. Further, no representative of the Company can insist that an Employee must work in unsafe conditions due to inclement weather”.

In this respect, I do not agree that clause 6 of the Agreement requires employees to perform their full duties despite inclement weather or that this undermines the intent of the inclement weather provisions and the Work Health and Safety Act as submitted by the AWU.

Further, while clause 6.1.7 of the Agreement contemplates continuation of work in cases of emergency or it is necessary to complete work already commenced to a practical stage, the Agreement qualifies that this work may occur or continue “provided such work does not give rise to a reasonable concern on the part of an employee undertaking the work of an imminent risk to their health or safety…” This is in similar terms to clause 24.5 of the Award which states:

“When inclement weather conditions exist an affected employee is not required to start or continue to work where it is unreasonable or unsafe to do so. In cases where emergency work is required or it is necessary to complete a concrete pour already commenced to a practical stage, work may occur or continue provided that such work does not give rise to a reasonable concern on the part of an employee undertaking the work of an imminent risk to their health or safety.”

Further, clause 6.1.7 goes on to state that

“(i) Such work will be conducted subject to appropriate safety procedure being in place;
(ii) Employees(s) will be provided with safety equipment and respite to minimise the impact of work in the rain or heat;
(iii)On completion of work in the rain and where it is expected that rain will cease in a timeframe where meaningful work can be undertaken:

(1)Employee(s) may be provided with additional dry clothing to allow ordinary work to continue; or
(2)With the approval of the relevant area supervisor, Employee(s) who carry out critical work in the rain and who get wet as a result may be allowed to go home when critical work is completed.
(3)Employee(s) who are sent home with the approval of the supervisor within their ordinary time hours, will be paid their normal rostered shift at ordinary rates”.

It is clearly intended by the clause that an employee will not be required to work in unsafe conditions. The most significant differences between the Award and Agreement are those identified above by the CFMEU.

Conclusion

There are detriments in the Agreement compared to the Award, including that the replacement of boots is at the discretion of the employer and considering the differences in respect of the inclement weather provisions in the Agreement compared to the Award as identified by the CFMEU. However, I do not consider that the differences between the Award and Agreement are so significant such that it follows that employees are not better off overall when the broader terms of the Agreement are considered, particularly the materially higher rates of pay under the Agreement as compared to the Award.

As noted above, the Applicant has provided undertakings (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and to the extent that views have been provided they have been considered. 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.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Australian Workers’ Union and the Construction, Forestry and Maritime Employees Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

The Applicant identified an obvious error in the agreement in that the ABN for Service Stream Utilities Pty Ltd was incorrectly stated. As such I vary clause A.1.1.12(a) of Schedule 1 of the Agreement pursuant to s.218A of the Act so that the ABN for Stream Utilities Pty Ltd is stated as ‘50 092 035 419’.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 August 2025. The nominal expiry date of the Agreement is 18 August 2028.

COMMISSIONER

Annexure A

[1] [2025] FWCFB 39.

[2] [2025] FWCFB 39

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Citations

John Holland Queensland Pty Ltd [2025] FWCA 2677

Cases Citing This Decision

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Cases Cited

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Model terms for enterprise agreements and copied State instruments [2025] FWCFB 39

[2025] FWCA 2677

11 AUGUST 2025