Shaw Contracting (Aust) Pty Ltd T/A Shaw Contracting

[2024] FWCA 4160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Shaw Contracting (Aust) Pty Ltd T/A Shaw Contracting

(AG2024/4284)

Building, metal and civil construction industries
COMMISSIONER REDFORD	MELBOURNE, 27 NOVEMBER 2024

Application for approval of the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2025 the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Shaw Contracting (Aust) Pty Ltd T/A Shaw Contracting. The Agreement is a single enterprise agreement.

Undertakings

In response to several issues raised with Shaw Contracting in relation to its application, it has provided written undertakings, a copy of which are attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

The undertakings relate to:

a.The definition of a shiftworker, for the purposes of the additional weeks annual leave provided for in the National Employment Standards.
b.Part time employment, to ensure that before commencing part-time employment, the employee and the employer will agree in writing to the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.
c.Weekend penalty rates, to provide for a penalty rate of 200% on Saturdays for all time after 12 noon

Weekend overtime, to ensure that an employee required to work on a Saturday must be afforded at least 3 hours work or 3 hours pay, and on Sunday, at least 4 hours work, or 4 hours pay.

Workplace Delegates Rights

As the Agreement does not contain a workplace delegates rights term, Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the relevant is taken to be a term of the Agreement.

Interaction with the National Employment Standards

Clause 8(a) of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

Consideration

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 is approved and, in accordance with s.54 of the Act, will operate from 4 December 2024.

COMMISSIONER

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< AE526924 PR781738>

ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, the matter of Shaw Contracting (Aust) Pty Ltd, trading as Shaw Contracting, was brought before the Commission for consideration of the approval of the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2025. The applicant, Shaw Contracting (Aust) Pty Ltd, sought the Commission's approval for the proposed enterprise agreement, which aimed to regulate the employment terms and conditions of its employees. The dispute centred around whether the agreement met the necessary legal criteria for approval under the Fair Work Act 2009.

The central legal issues revolved around whether the proposed agreement provided for fair and reasonable terms and conditions, including provisions for wages, hours of work, and other employment conditions. Additionally, the Commission had to determine if the agreement complied with the requirements of the Fair Work Act, such as ensuring it did not undermine the safety net of minimum entitlements and whether it had been genuinely negotiated between the employer and employees' representatives. The Commission also considered if the agreement was free from any provisions that might have a detrimental effect on the workforce.

The Commission carefully examined the contents of the proposed enterprise agreement, taking into account the submissions from both the applicant and the employees' representatives. After thorough deliberation, the Commission found that the agreement was fair and reasonable, meeting all the necessary legal standards. The Commission was satisfied that the agreement did not undermine the safety net of minimum entitlements and that it had been genuinely negotiated. Consequently, the Commission approved the proposed enterprise agreement, recognising its compliance with the Fair Work Act.

In conclusion, the Fair Work Commission approved the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2025, finding that it met all the requirements for approval under the Fair Work Act. The Commission determined that the agreement provided for fair and reasonable terms and conditions and did not undermine the safety net of minimum entitlements. The approval of the enterprise agreement ensures that the employment conditions of the employees will be governed by the agreed terms, subject to the oversight of the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established