NRW Pty Ltd

[2024] FWCA 3242

[2024] FWCA 3242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

NRW Pty Ltd

(AG2024/3093)

NRW PTY LTD CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 18 SEPTEMBER 2024

Application for approval of the NRW Pty Ltd Civil Construction Enterprise Agreement 2024.

1. NRW Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the NRW Pty Ltd Civil Construction 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 Applicant has 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.

1. Subject to the undertakings referred to above, and 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, 188, and 190 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 15.2 of the Agreement does not appear to provide compassionate leave after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s 105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s 105(1)(c) of the Act.

(b)Clause 17.3 of the Agreement provides that the employer and the majority of employees may agree to substitute a nominated public holiday to another day. This appears to be inconsistent with s 115(3) of the Act which provides that such substitution may only occur by agreement between the employer and an employee.

(c)Clause 21.7 of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

1. However, I am satisfied that under clause 4.3 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 Agreement does not contain a delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2), 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.

1. The Agreement was approved on 18 September 2024 and, in accordance with s 54, will operate from 25 September 2024. The nominal expiry date of the Agreement is 18 September 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE526052  PR779160>

Annexure A