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

1. 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.

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

1. 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.

1. 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.

1. 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

1. 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.

1. 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.

1. 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.

1. 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 been a genuine agreement.

1. In respect of the National Employment Standards (NES), there is one issue that requires comment:

·  Clause 6.2.4.1 of the Agreement provides that ‘Employees must notify the Project Manager prior to 7.30 am or normal start time on the day of absence, unless special circumstances apply of the Employee's inability to attend for duty, and as far as practicable, state the nature of injury or illness and the estimated duration of the absence. Where special circumstances exist for not notifying the Employer prior to 7.30am, the Employee will notify the Project Manager as soon as practicable.’ This clause appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

1. Clause 1.3.4 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

1. The Applicant submitted an undertaking in the required form dated 4 February 2025, a copy of which is attached to the Agreement.  The undertaking deals with the following topics:

·  The definition of a shiftworker in Clause 6.1.1.2 is for the purpose of accruing an additional week of annual leave under the National Employment Standards.

·  The hourly rate of pay for Trades Assistant/Labourers is increased (see undertaking for rates).

·  Any arrangement made with a part-time employee under Clause 3.3.1 will include the hours to be worked, the days on which the hours will be worked, and the commencing times of the work.

·  Despite Clause 19.3, Schedule 1, shift allowances are increased (see undertaking for rates).

·  Clause 29.13(f) – (l) of the Building and Construction General Onsite Award 2020 will apply to any TOIL arrangements.

·  When an employee who is working shift work is required to perform overtime, the overtime will be paid at double time (200%). 

·  Clause 4.6.15 will not apply to Trades Assistant / Labourer or Tradesperson Level 1.

·  A part-time employee will be entitled to notice of termination in accordance with the NES.

·  In respect of better off overall issued relating to distant work payments, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery.[1]

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative, being the CFMEU, did not express any view on the undertaking dated 4 February 2025.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. 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. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 23 February 2029.

COMMISSIONER

[1] [2017] FWCFB 1664

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