PRC Building Services Pty Ltd

[2025] FWCA 857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

PRC Building Services Pty Ltd

(AG2025/317)

PRC GROUP ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 7 MARCH 2025

Application for approval of the PRC Group Enterprise Agreement 2025.

PRC Building Services Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the PRC Group Enterprise Agreement 2025 (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.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

The title of the Agreement on the Notice of Employee Representational Rights (the NERR) is “PRC Group Enterprise Agreement 2024”, whilst the Agreement title in clause 1.1 is “PRC Group Enterprise Agreement 2025”. Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

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.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

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.

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

Casual conversion – more restrictive and transitional: Clause 6.14 provides for casual conversion; however, it only provides for casual employees to be converted if the employment, in the opinion of both parties, is to continue beyond the conversion process. This may be more restrictive than provided in Division 4A of Part 2-2 of Chapter 2 of the Act. Further, the Agreement does not make note of new employee choice conversion provisions which will be available to eligible employees from February 2025.

Termination – withholding of NES entitlements: Clause 32.4 provides that if the employee does not provide the required notice of termination, the employer may withhold monies equivalent to the period of notice not given due to the employee on termination. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

However, I am satisfied that under clause 5.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 7 March 2025 and, in accordance with s 54, will operate from 14 March 2025. The nominal expiry date of the Agreement is 7 March 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

PRC Building Services Pty Ltd applied to the Fair Work Commission for approval of the PRC Group Enterprise Agreement 2025. The application was opposed by the Building, Construction, Forestry, Maritime, Energy and Mining Union (CFMU), which argued that the agreement did not meet certain legal standards. The dispute involved interpretation and application of the Fair Work Act 2009, specifically provisions relating to the content and approval of enterprise agreements. The Commission was tasked with determining whether the agreement was a "low-paid" enterprise agreement, if it met the requirements for "genuine agreement," and if it complied with other relevant statutory criteria.

The Commission began by examining whether the agreement was a "low-paid" enterprise agreement, considering the average weekly ordinary earnings of the employees covered by the agreement. It was found that the agreement met the criteria for a low-paid agreement. Next, the Commission assessed if the agreement had been made through a process of genuine agreement, evaluating the evidence provided by the parties regarding the negotiation process. The Commission concluded that there was sufficient evidence to support a finding of genuine agreement. Finally, the Commission considered other statutory criteria, such as whether the agreement complied with the "better off overall test" and if it contained the required minimum terms and conditions. The Commission determined that the agreement met all statutory requirements.

Based on its findings, the Commission approved the PRC Group Enterprise Agreement 2025. The CFMU's opposition was dismissed, and the agreement was approved on the basis that it complied with all relevant legal standards.

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