LAF Contracting (NSW) Pty Ltd Trading as LAF Group Summary

[2024] FWCA 1825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

LAF Contracting (NSW) Pty Ltd Trading as LAF Group

(AG2024/1513)

LAF CONTRACTING (NSW) PTY LTD ENTERPRISE AGREEMENT 2024-2028

Building and construction industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 17 MAY 2024

Application for approval of LAF Contracting (NSW) Pty Ltd Enterprise Agreement 2024-2028

Introduction

LAF Contracting (NSW) Pty Ltd Trading as LAF Group (the Employer) has made an application for approval of an enterprise agreement known as the LAF Contracting (NSW) Pty Ltd Enterprise Agreement 2024-2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Date of Operation

Clause 3.2 of the Agreement states that the Agreement ‘shall come into operation following receipt of a notice issued by Fair Work Australia.’ This is inconsistent with s.54 of the Act which provides an Agreement will operate from 7 days after approval by the Fair Work Commission unless a later date is specified. The date of operation is specified in paragraph [8] of this decision.

Model Consultation Terms

The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement. A copy can be found in Annexure B of the Agreement.

National Employment Standards (NES) precedence term in Clause 3.4.5 of the Agreement

Clause 7.2.1 of the Agreement states that an employee shall be entitled to paid personal carer's leave which shall accrue and be credited at the rate of 5.846 hours for every completed 4-week period of service. Clause 7.2.6 of the Agreement limits employees to taking no more than 10 days per year of paid carer’s leave. Clause 7.7.4 of the Agreement states that employees are expected to be available to work on public holidays as required.

These clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 3.4.5 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is 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.

Section 186, 187, 188 and 190

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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 May 2024. The nominal expiry date of the Agreement is 16 May 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

LAF Contracting (NSW) Pty Ltd, trading as LAF Group, applied to the Fair Work Commission for approval of its Enterprise Agreement 2024-2028. The application was brought before the Fair Work Commission under the Fair Work Act 2009, which governs the approval of enterprise agreements in Australia. The Fair Work Commission was tasked with determining whether the proposed agreement met the legal standards for approval, including compliance with the provisions of the Fair Work Act and fairness obligations.

The legal issues before the Commission included whether the agreement provided for minimum terms and conditions of employment, if it was free from prohibited content, and if it complied with the fairness test. The Commission considered whether the agreement adequately protected employee rights and interests and if it provided for a fair and reasonable resolution of workplace issues. The court also assessed whether the agreement was made in good faith and if it was appropriately certified by an accredited independent bargaining agent.

The Fair Work Commission found that the proposed agreement was compliant with the statutory requirements and passed the fairness test. The Commission confirmed that the agreement contained all the minimum terms and conditions as stipulated by the Fair Work Act and did not include any content that was prohibited. The Commission was satisfied that the agreement was made in good faith and was appropriately certified. The Commission approved the Enterprise Agreement 2024-2028, allowing it to be implemented from the effective date.

The Fair Work Commission granted approval for the LAF Contracting (NSW) Pty Ltd Enterprise Agreement 2024-2028, ensuring it would be binding on the parties involved. The Commission's decision was based on the agreement's compliance with the Fair Work Act and its adherence to the fairness test. The agreement was now enforceable, providing a framework for the terms and conditions of employment for the duration of the agreement.

LAF Contracting (NSW) Pty Ltd Trading as LAF Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established