Macquarie Builders Pty Ltd

[2025] FWCA 2256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Macquarie Builders Pty Ltd

(AG2025/2005)

MACQUARIE BUILDERS PTY LTD & ON-SITE EMPLOYEES 2024 AGREEMENT

Building, metal and civil construction industries
COMMISSIONER TRAN	MELBOURNE, 9 JULY 2025

Application for approval of the Macquarie Builders Pty Ltd & On-Site Employees 2024 Agreement

Macquarie Builders Pty Ltd (ABN: 97 081 725 199) has applied for approval of an enterprise agreement known as the Macquarie Builders Pty Ltd & On-Site Employees 2024 Agreement under s 185 of the Fair Work Act 2009.

The Agreement is a single enterprise agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards:
·   Clause 34.3(e) – Evidence for personal leave
·   Clause 34.4(b) – “Immediate family” for the purposes of carer’s leave
·   Clause 34.4(e) – Notice for carer’s leave
·   Clause 34.5 – Compassionate leave
·   Clause 35(a) & 35(b) – Public holidays
·   Schedule 1, clause 4.4 – Termination (deductions)

Clause 1.7 of the Agreement gives precedence to the NES, and I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a delegates’ rights term as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 36A of the Building and Construction General On-Site Award 2020 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 16 July 2025.

In accordance with clause 6.1, the nominal expiry date of the Agreement is 30 June 2028.

Variation under s 218A

Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities. It is a discretionary power, and the Commission must first be satisfied that the identified errors or amendments sought are obvious errors, defects or irregularities.

I determined to vary the Agreement on my own initiative, following the identification of a typographical error in clause 15.6.

The Applicant provided an amended copy of the Agreement, with only the amendments identified above.

I am satisfied that the amendments should be made and that it is appropriate to do so in accordance with s 218A. The variation will operate from the date the Agreement commences.

The Agreement attached to this Decision is the Agreement as varied and will operate from 16 July 2025. The nominal expiry date of the Agreement as varied is 30 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

Macquarie Builders Pty Ltd applied for approval of a single enterprise agreement under section 185 of the Fair Work Act 2009. The agreement in question, known as the Macquarie Builders Pty Ltd & On-Site Employees 2024 Agreement, was subject to several potential inconsistencies with the National Employment Standards (NES). The Fair Work Commission considered whether these inconsistencies, if any, could be rectified through the employer's written undertakings, and whether the agreement met all relevant requirements for approval.

The legal issues before the Commission involved assessing whether certain clauses in the agreement were inconsistent with the NES and if the employer’s undertakings adequately addressed these issues. The Commission also needed to determine if the agreement contained the required workplace delegates’ rights term and whether the proposed variation under section 218A of the Act was appropriate to correct a typographical error identified in the agreement.

The Fair Work Commissioner found that the employer’s written undertakings were sufficient to ensure that employees would not suffer financial detriment and that the changes would not substantially alter the agreement. The Commissioner also noted that the agreement's clause 1.7 provided precedence to the NES, ensuring that more beneficial NES entitlements would prevail where inconsistencies existed. Additionally, the Commissioner determined that the workplace delegates' rights term from the Building and Construction General On-Site Award 2020 would apply to the agreement as required by section 205A(2) of the Act. Lastly, the Commission varied the agreement to correct a typographical error in clause 15.6, finding it to be an obvious error warranting amendment under section 218A.

The Fair Work Commission approved the Macquarie Builders Pty Ltd & On-Site Employees 2024 Agreement, subject to the employer’s undertakings and the amendment to correct the typographical error. The agreement was set to operate from 16 July 2025, with a nominal expiry date of 30 June 2028.

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