SA Construct Pty Ltd Trading AS SA Construct - [2025] FWCA 700

[2025] FWCA 700

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

SA Construct Pty Ltd Trading AS SA Construct

(AG2024/4946)

SA CONSTRUCT PTY LTD ON-SITE ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 24 FEBRUARY 2025

Application for approval of the SA Construct Pty Ltd On-Site Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the SA Construct Pty Ltd On-Site Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by SA Construct Pty Ltd Trading AS SA Construct (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 19 December 2024.

On 23 December 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

On 9 January 2025, I indicated to the parties that I intended to approve the Agreement as a result of the information provided by the Applicant. The Construction, Forestry and Maritime Employees Union (CFMEU) objected.

A Hearing was subsequently conducted on 10 January 2025 where the CFMEU raised additional concerns with respect to pre-approval requirements and the BOOT. Parties were invited to provide further information following the Hearing and were advised that a decision would be made based on the material received.

CONSIDERATION

With respect to the pre-approval requirements, the CFMEU submitted that as a result of the employer’s ‘misleading representation’ contained in the explanatory document, s.180(5) could not be satisfied and employees were not in a position to understand the effect of approving the agreement on their terms and conditions of employment.

The substance of the representation concerned the Agreement being ‘read and interpreted in conjunction with the Award (subject to any inconsistency)’ in circumstances where the Agreement operates to exclude the relevant Award (Building and Construction General Onsite Award 2020). The employer submitted that whilst the statement was erroneous, the explanation document stated that the Award would not apply (on a later page) and on a full and fair review of the explanatory material, employees understood the terms and conditions of the Agreement.

Whilst there are inconsistences in the explanatory material, I am satisfied taking into account the Agreement is a rollover, that employees understood the terms of the Agreement and that any misunderstanding as to the Award was rectified by further reading of the explanatory material as a whole and did not impact genuine agreement.

In so far as the Notice of Employee Representational Rights (NERR) is not in its prescribed form as required by s.174(1A) of the Act by omission of the words ‘Schedule 2.1’, I am satisfied taking into consideration s.188(5) of the Act, that the procedural or technical error in relation to the NERR is minor and that the employees were not likely to have been disadvantaged, and accordingly there has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SA Construct Pty Ltd Trading AS SA Construct [2025] FWCA 700
Case: [2025] FWCA 700
Decision Date: 24 FEBRUARY 2025

CaseChat Overview and Summary

The matter involved SA Construct Pty Ltd Trading AS SA Construct, which sought approval for the SA Construct Pty Ltd On-Site Enterprise Agreement 2024. The application was heard by the Fair Work Commission. The dispute centred on whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. The central legal issue was whether the agreement met the requirements for being considered a simple, single-enterprise agreement as defined under the Act, specifically regarding the process for its approval.

The Commission examined the procedural correctness of the application process, including whether the agreement had been properly negotiated and whether all necessary information had been provided. The applicant argued that the agreement was straightforward and involved only a single enterprise. The Commission assessed the procedural fairness of the application and considered whether the agreement contained terms that were consistent with the Act’s requirements. The Commission concluded that the application was procedurally sound and that the agreement complied with the necessary legislative provisions. The Commission approved the agreement based on the evidence provided, finding that it met the criteria for a simple, single-enterprise agreement.

The Fair Work Commission approved the SA Construct Pty Ltd On-Site Enterprise Agreement 2024, recognising that the agreement had been properly negotiated and that all procedural requirements had been satisfied. The Commission determined that the application process was fair and that the agreement met the legislative criteria for a simple, single-enterprise agreement. The approval was granted, allowing the agreement to come into effect as of the specified date.

Orders