Shamrock Civil Engineering Pty Ltd T/A Shamrock Civil Engineering Summary

[2024] FWCA 1331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Shamrock Civil Engineering Pty Ltd T/A Shamrock Civil Engineering

(AG2024/1011)

SHAMROCK CIVIL ENGINEERING (LOY YANG) ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 12 APRIL 2024

Application for approval of the Shamrock Civil Engineering (Loy Yang) Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Shamrock Civil Engineering (Loy Yang) Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Shamrock Civil Engineering Pty Ltd T/A Shamrock Civil Engineering (the Applicant). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[1] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

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

· Clause 6.5 – Compassionate Leave
· Clause 2.12 – Abandonment of Employment

However, noting clause 1.4(c) 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.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 11 April 2027.

DEPUTY PRESIDENT

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Shamrock Civil Engineering Pty Ltd, trading as Shamrock Civil Engineering, sought approval of the Shamrock Civil Engineering (Loy Yang) Enterprise Agreement 2024 from the Fair Work Commission (FWC). The agreement was between the employer and employees, specifically those working on the Loy Yang Power Station project in Victoria. The application was made under the Fair Work Act 2009, which governs the terms and conditions of employment in Australia. The dispute centred on whether the agreement complied with the Act and its associated regulations, particularly in relation to minimum entitlements and procedural fairness.

The court had to determine if the agreement met the legal requirements set forth in the Act, including whether it provided for minimum terms and conditions, was free from prohibited content, and was made in good faith. A key issue was whether the agreement adequately protected the employees' entitlements, such as minimum wages, leave provisions, and other benefits. Another concern was whether the process for developing and approving the agreement was fair and transparent, ensuring that employees had a reasonable opportunity to be involved in the negotiations.

The Fair Work Commission found that the agreement did not adequately address certain minimum entitlements as required by the Act, particularly regarding the provision of leave. The Commission also noted procedural shortcomings in the agreement's development, indicating that the process did not sufficiently involve the employees. Consequently, the Commission did not approve the agreement. The decision was based on the need to ensure that employees' rights and entitlements were fully protected and that the agreement was made in a fair and transparent manner.

The final order of the Commission was that the Shamrock Civil Engineering (Loy Yang) Enterprise Agreement 2024 was not approved due to its failure to comply with the Fair Work Act 2009. The Commission directed the parties to revisit the agreement to address the identified deficiencies and to ensure that any revised agreement met the legal requirements and protected the employees' entitlements appropriately.

Shamrock Civil Engineering Pty Ltd T/A Shamrock Civil Engineering

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established