Protech Personnel Pty Ltd

[2025] FWCA 744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Protech Personnel Pty Ltd

(AG2024/5261)

PROTECH ON-HIRE CONSTRUCTION SERVICES EMPLOYEE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 FEBRUARY 2025

Application for approval of the Protech On-Hire Construction Services Employee Agreement 2024

Protech Personnel Pty Ltd (the Applicant) has applied for approval of an enterprise agreement known as the Protech On-Hire Construction Services Employee Agreement 2024 (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.

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 12 September 2024 and the Agreement was made on 13 December 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Applicant, and as a result, the Applicant has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 March 2025. The nominal expiry date of the Agreement is 26 February 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

Protech Personnel Pty Ltd applied to the Fair Work Commission (FWC) for approval of their proposed on-hire construction services employee agreement. The applicant, a staffing agency, sought to have the agreement recognised as a relevant workplace determination under the Fair Work Act 2009. This would allow it to apply to employees of their clients, specifically those in the construction industry.

The legal issues before the FWC involved whether the proposed agreement met the criteria for approval under the Fair Work Act. This included assessing whether the agreement provided for minimum terms and conditions of employment, whether it was not less favourable than the relevant award or registered agreement, and whether it was in the public interest. The applicant argued that the agreement was necessary to address the needs of the construction industry and to provide a fair and efficient workforce solution for employers and employees alike.

The FWC found that the proposed agreement met the criteria for approval. The Commission considered the agreement to provide for appropriate minimum terms and conditions, and that it was not less favourable than the relevant award. The FWC also found that the agreement was in the public interest, as it aimed to provide a flexible and efficient workforce solution for the construction industry. The Commission approved the Protech On-Hire Construction Services Employee Agreement 2024 as a relevant workplace determination.

The FWC ordered that the Protech On-Hire Construction Services Employee Agreement 2024 be approved and registered as a relevant workplace determination under the Fair Work Act. The agreement will now apply to employees of Protech's clients in the construction industry, providing them with a fair and efficient workforce solution. The decision highlights the importance of ensuring that workplace agreements meet the necessary criteria for approval, while also balancing the needs of employers and employees in the industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established