McIlwain Civil Engineering Pty Ltd

[2025] FWCA 2275

[2025] FWCA 2275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

McIlwain Civil Engineering Pty Ltd

(AG2025/1678)

MCILWAIN CIVIL ENGINEERING PTY LTD ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 10 JULY 2025

Application for approval of the McIlwain Civil Engineering Pty Ltd Enterprise Agreement 2025

1. McIlwain Civil Engineering Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the McIlwain Civil Engineering Pty Ltd Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 10 January 2025 and the Agreement was made on 20 May 2025. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. There were no bargaining representatives for the Agreement. Therefore, the Commission was not required to seek the views of any person or organisations, for the purposes of satisfying s.190(4) of the Act.

1. 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. In correspondence issued to the Employer, I raised concerns that the Employer did not explain to employees the Agreement’s failure to provide the redundancy entitlement as contained in the Building and Construction General On-site Award 2020 (the Award). Under the Award, employees are entitled to the redundancy entitlement where their employment ends for any reason (other than for misconduct or refusal of duty), including resignation. The Agreement does not confer this entitlement. I indicated to the Employer that if there was a failure to explain to employees the Award provision, the Agreement may not have been genuinely agreed to by employees pursuant to s.188 of the Act.

1. The matter was listed for conference on 23 June 2025 to discuss my concerns regarding genuine agreement. During the conference, the Employer agreed to write to the employees that voted on the Agreement and explain the effect of the absence of the Award redundancy entitlement. The correspondence issued by the Employer to employees also invited employees to contact my chambers and advise whether, having regard to the explanation provided by the Employer, they would have changed the vote that they made in relation to the Agreement.

1. Four employees cast a valid vote in relation to the Agreement. I received correspondence from three employees, each of whom advised that they would not have changed their vote in relation to the Agreement. Accordingly, having regard to the steps undertaken by the Employer following the conference and the responses received from employees, I am satisfied that the Agreement has been genuinely agreed to by employees in accordance with s.188 of the Act.

1. I informed the Employer that the Agreement in clause 7.1 appeared to contain a typographical error. In the copy of the Agreement submitted with the approval application, clause 7.1 states, “The weekend overtime times will be payable on ordinary hours worked on the weekend…”. I suggested to the Employer that the word ‘times’ should instead read ‘rates’. I sought the Employer’s views as to whether the Commission should exercise its discretion under s.218A of the Act to correct an obvious error by replacing the word ‘times’ with ‘rates’. The Employer acknowledged that the use of the word ‘times' in clause 7.1 was a typographical error and requested that the Commission exercise its discretion to correct the error by replacing word ‘times’ with ‘rates’.

1. I am satisfied that the reference to the word ‘times’ is an obvious error within the meaning of s.218A of the Act. Accordingly, I exercise my discretion under s.218A to vary the Agreement to correct this error in clause 7.1 by replacing the word ‘times’ with ‘rates’. The variation will operate from the operative date of the Agreement, being 17 July 2025.

1. I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. 
   The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 July 2025. The nominal expiry date of the Agreement is 10 July 2029.

COMMISSIONER

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Annexure A – Undertakings