Qrc Labour Pty Ltd

[2025] FWCA 265

[2025] FWCA 265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Qrc Labour Pty Ltd

(AG2024/4478)

QRC LABOUR PTY LTD ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 22 JANUARY 2025

Application for approval of the QRC Labour Pty Ltd Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the QRC Labour Pty Ltd Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by QRC Labour Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[1] The Applicant provided a list of casual employees who were engaged during the relevant period. I found that three casual employees should not have been given an opportunity to vote (or voted) as he/she was not engaged during the access period or on the day of the vote. However, I find that by reference to the evidence before me as to the vote that occurred, that whether those three casual employees voted in favour of the approval of the agreement, voted against it, or otherwise abstained, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote. Hence, having regard to the submissions of the Applicant and the evidence before me, I find that this error constitutes a minor procedural and/or technical error in accordance with s.188(2) of the Act.[2] I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[3] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[4]

1. The Agreement does not contain a delegate’s rights term, pursuant to s.205A, and on that basis the term in the relevant modern award will apply.

1. The Applicant has provided written undertakings. 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. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[5] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 8.1.1 – Annual Leave (cashing out).

·   Clause 34.2 – Public Holidays (ability to reasonably refuse)

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

1. The Agreement is approved and will operate from 1 February 2025. The nominal expiry date of the Agreement is 31 January 2028.

DEPUTY PRESIDENT

[1] Kmart Australia Limited T/a Kmart and Others [2019] FWCFB 75992.

[2] Kingston City Council T/A King City Council [2020] FWCA 2323, at [49].

[3] Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

[4] Ibid.

[5] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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