Monadelphous Engineering Associates Pty Limited T/A Monadelphous Engineering Associates

[2024] FWCA 1260

[2024] FWCA 1260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Monadelphous Engineering Associates Pty Limited T/A Monadelphous Engineering Associates

(AG2024/786)

HEAVY LIFT PILBARA ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 10 APRIL 2024

Application for approval of the Heavy Lift Pilbara Enterprise Agreement 2024

1. Monadelphous Engineering Associates Pty Limited T/A Monadelphous Engineering Associates (the Applicant) has made an application for the approval of an enterprise agreement known as the Heavy Lift Pilbara Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the

Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 4 March 2022.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 39 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies. However, it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s.104(1)(b) and (c) of the Act.

(b)Clause 44(c) of the Agreement provides agreement between employees and the employer to the substitution of public holidays. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.

1. However, I am satisfied that under clause 4 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Construction, Forestry and Maritime Employees Union (CFMEU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the CFMEU is covered by the Agreement.

1. The Agreement was approved on 10 April 2024 and, in accordance with s 54, will operate from 17 April 2024. The nominal expiry date of the Agreement is 17 April 2028.

COMMISSIONER

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